Clause 6 — Proceedings under scheme

Orders of the Day – in the House of Commons at 3:32 pm on 6 November 2006.

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Votes in this debate

Lords amendment: No. 4A.

Photo of Andy Burnham Andy Burnham Minister of State (Department of Health) (Delivery and Quality) 3:34, 6 November 2006

I beg to move, That this House
disagrees with the Lords in the said amendment, insists on Commons amendments Nos. 5 and 16, and proposes amendment (a) in lieu.

I think that it is with some surprise that we find ourselves discussing this amendment. I say that not with any sense of arrogance but because I genuinely feel that the House had a good-natured and constructive debate on the matter. We adopted a reasonable approach in response to concerns raised in another place and in this place in Committee and, as the listening kind of Government that we are, we proposed changes to the Bill, which responded to those concerns and which were passed by a considerable majority of the House.

For the avoidance of doubt, I shall set out what we believe we are trying to do in the Bill and the NHS redress scheme. We want to create a fast-track settlement scheme that provides a better experience for patients—that has the patient at its heart. We want to facilitate a learning culture at local level where complaints are dealt with openly and transparently. By doing that, we want to bring down the costs to the NHS of clinical negligence claims and create a better culture for the handling of complaints and claims. I am clear that our policy is both workable and right, but I readily acknowledge that the process we went through helpfully focused the Bill for the benefit of patients, and I pay tribute to Opposition Members who helped in that process.

Photo of Keith Vaz Keith Vaz Labour, Leicester East

May I take my hon. Friend back to a point that was put to my right hon. Friend Jane Kennedy, his predecessor as Minister of State, when she appeared before the Select Committee on Constitutional Affairs during its proceedings on the Bill? We asked that the Government encourage local health authorities to settle matters locally. Many problems arise because local people do not understand the nature of the procedure and in the initial letter of reply there is no clarity about how matters can be resolved. Resolving matters locally is much better than litigation.

Photo of Andy Burnham Andy Burnham Minister of State (Department of Health) (Delivery and Quality)

I quite agree. It may be helpful to explain again the point that my right hon. Friend raises. In parts of the NHS, there is an unsatisfactory culture for the handling of complaints, so because patients do not receive a satisfactory response when they first make a complaint, they are pushed towards considering options such as a second stage complaint to the Healthcare Commission, or even legal action. However, as I have said before, I do not believe that anybody who makes a complaint does so with the intention of taking the NHS to the cleaners, or to make significant financial gain. In the overwhelming majority of cases, the reason why people pursue complaints is "to stop it happening to somebody else", as they tell us in our surgeries. I am sure that my right hon. Friend has heard that in his surgeries, as I have in mine. If the NHS was better at engaging with the patient at the point when the complaint was made, the outcome would be better all round. It would certainly be a better outcome for the individual but, ironically, also for the NHS, in that it could learn from patients' experience and try to improve it, from the point at which a complaint was received. However, I entirely take my right hon. Friend's point that the process should be clearer and simpler for the patient.

Photo of Keith Vaz Keith Vaz Labour, Leicester East

I am most grateful to my hon. Friend for giving way a second time. Will the Government be issuing fresh guidance about how to deal with complaints, to accompany the new statutory provisions for local health authorities? Practice varies according to local health authorities, so if the Secretary of State or my hon. Friend the Minister were to give guidance locally, it would help the process.

Photo of Andy Burnham Andy Burnham Minister of State (Department of Health) (Delivery and Quality)

The Bill deals with complaints of negligence where there is a liability in tort and when—as we hope—it is passed, secondary legislation will underpin it, setting out the structure under which we envisage that the scheme will operate. I feel strongly that a rethink is needed about how the NHS handles complaints in the round—not necessarily only complaints where there is a liability in tort. On Friday, I visited a trust that has adopted a much more interventionist approach, by engaging with the individual bringing the complaint to improve the patient experience and so that the trust can learn quickly what is not going right.

In an era when there is more choice in the NHS, and patients can move around the system, the clever trusts are those that engage with complaints in that way. They are looking closely at the quality of the patient experience and using every bit of information they can get hold of to improve it. I very much go with the grain of what my right hon. Friend says. The scheme will facilitate a better culture, but I want to build on it, so that complaints are handled better.

I was describing how we improved the Bill, and I was paying tribute to Opposition Members. I should particularly mention Sandra Gidley, who made some very helpful suggestions during the Bill's passage through the House. To take one example of the improvements made, we included a measure that allowed investigation reports to be provided to individuals on request. It is partly on account of that amendment that I am surprised to be back discussing the Bill today; it does not appear to have been appreciated in the other place. Earl Howe spoke about the measure in the other place:

"What have we got? We have a scheme that will see a patient's application for redress disappear into a closed process, one that is the very opposite of transparent. The patient has no idea whether the facts of his case have been looked at fairly or fully."—[ Hansard, House of Lords, 25 October 2006; Vol. 685, c. 1240.]

Earl Howe is a reasonable and fair-minded man, but on the basis of that comment, I am not sure that the import and effect of the amendments agreed to in the Commons were fully appreciated by their lordships. At the instigation of the hon. Member for Romsey, we made a concession and allowed full investigation reports to be made available to the individual, so it seems impossible that such comments could be made.

We want a scheme that has transparency and accountability built into it, so today we have tabled an amendment that will further improve the accountability of the NHS redress scheme by allowing the naming of the responsible person who could be answerable if a further complaint was made to the health care ombudsman. They would have to be a person of experience and seniority, and that provision will further strengthen the scheme. Not a great deal separates the Government from the Opposition on the Bill, but our differences seem to come down to the issue of independence and independent investigation.

Photo of John Baron John Baron Shadow Minister (Health)

Will the Minister confirm that the responsible person that he describes may be of senior rank, but will nevertheless be from within the trust that is being investigated? An investigation into a trust will be carried out by the trust itself, and that cannot add to the credibility of the scheme.

Photo of Andy Burnham Andy Burnham Minister of State (Department of Health) (Delivery and Quality)

I will deal with that point later, but I tell the hon. Gentleman that we have built into the Bill elements that will strengthen the transparency and accountability of the process for the patient. There is genuine disagreement between the Opposition and the Government, but it is important that we see the scheme for what it is—an in-house, first-stage process. Under the scheme, trusts need not go through the long process to which my right hon. Friend Keith Vaz alluded, but can rather engage with the complaint from the first. They can learn from what happened to the patient, and can then provide speedy redress, thereby improving the experience for the patient and saving the organisation a great deal of time. That is the right thing to do. If the first stage of the scheme included an independent investigation, the scheme would have the same qualities as the process that is available to patients who choose not to pursue their complaint through the redress scheme, or who proceed to litigation because they did not receive satisfaction through the scheme. That is a different proposal, and it would make the scheme entirely different.

I have to turn the subject back to Mr. Baron. The ideas on independence put forward by the Opposition Front Benchers, both in this House and in another place, have varied considerably during the parliamentary passage of the Bill. When the Bill was first sent to the Commons from another place, it required the Secretary of State for Health to make provision for the appointment of patient redress investigators. There was to be a panel of independent investigators, who were to conduct investigations. The Healthcare Commission was to maintain a list of those investigators, and to oversee them. That model gave rise to problems of cost and practicality, with the Department's own economist estimating a cost of £41 million a year.

On Report, the hon. Member for Billericay pointed out some of those problems and presented a variation in which the person overseeing the investigation was independent of the scheme member in question. We were told that there would be the same administration, but it would operate under the direction of an independent person, so there would be no new bureaucracy.

Photo of John Baron John Baron Shadow Minister (Health) 3:45, 6 November 2006

The Minister is slightly disingenuous, as I tabled probing amendments. The principle remains the same—we believe that whoever investigates the facts should be independent of the trust under investigation. That has been a constant theme throughout. I tabled a probing amendment on redress investigators, but it was never pressed to a vote—it was simply a question of exploring alternatives. We want independence—that is the bottom line—but the Minister has admitted that he will not provide it.

Photo of Andy Burnham Andy Burnham Minister of State (Department of Health) (Delivery and Quality)

I agree that the Opposition have called for independence throughout the passage of the Bill, and various models have been submitted to suggest how that independence could be achieved. On Report, I asked the hon. Gentleman who would employ the independent individuals who would provide oversight. Would they be employed within or outside the NHS? In another place, Earl Howe made it clear that he did not wish to be prescriptive, saying that

"as one idea, I would propose that where the actions of a particular trust were the subject of a redress claim, a non-executive director of a different trust could be brought in to provide the necessary element of independent scrutiny and oversight."—[ Hansard, House of Lords, 25 October 2006; Vol. 685, c. 1241.]

We simply do not believe that that is a workable model. Non-executive directors could not be expected to have the necessary skills, experience, investigation techniques or time to provide a meaningful overview of investigation under the redress scheme, particularly if required to review investigations by a neighbouring trust.

Photo of Graham Stuart Graham Stuart Conservative, Beverley and Holderness

We are puzzled by the Government's refusal to engage with the proposal to introduce more independence, as are many outside bodies. We have tabled many probing amendments and proposals, but it is the Minister who is backed by thousands of civil servants and the Government machine. Has he genuinely tried to find a workable, cost-effective way of introducing more independence? The current scheme does not have the confidence of Opposition Members or many outside organisations.

Photo of Andy Burnham Andy Burnham Minister of State (Department of Health) (Delivery and Quality)

As I explained, we amended the Bill to improve openness, transparency and accountability for the patient concerned. Let me make it absolutely clear, however, that we do not favour an independent scheme, as we would lose the benefits of an NHS trust owning up to, and being open about, mistakes that have been made, learning from them and making changes to prevent such things from happening to other people. That is preferable to a process whereby a third party is engaged to look at the trust and its performance, which would not foster the culture that we are trying to achieve. The right to an independent investigation is not affected by the scheme, as people still have the right to pursue independent legal action if, after receiving the investigation report, they are not confident that their case was adequately investigated. They retain the right to progress to an independent stage. To pull independence into the scheme would create something different, as it is a first-stage scheme. The hon. Gentleman will know that any organisation that receives a complaint conducts a first-stage investigation itself before moving to the second stage, where independence comes into play. Opposition Members have confused the two notions.

Photo of Graham Stuart Graham Stuart Conservative, Beverley and Holderness

In Committee, the Minister said that the process would be quick if it was carried out by someone involved in the case. We fear that quickness, because the investigation would be conducted in the interests of an organisation investigating itself. We are still at a loss to understand why the patient who has been wronged should have confidence in the investigative report, even though we are glad that the Minister agreed to allow one to be made. Without independence, that patient will not trust the report.

Photo of Andy Burnham Andy Burnham Minister of State (Department of Health) (Delivery and Quality)

I appreciate that the hon. Gentleman and the Conservative party feel that the scheme should be independent, but we are proposing something different. We are proposing that when the NHS receives a complaint, it take ownership of it and engage positively and constructively with the individual concerned, rather than passing them from pillar to post, or, as often happens—I am sure that the hon. Gentleman can give examples of this from his constituency—for the shutters to come down and people to be forced away. It is much better to encourage a local investigation, and for local learning to take place, and for there to be engagement with the reasons why an individual has presented with a complaint under this scheme. It is a different model entirely to suggest that that should be done independently.

There have been various different suggestions, such as having redress investigators or an employed third party—although we did not find out more detail about that—and now we have the idea of having a non-executive director, perhaps from a neighbouring trust. Those options would be extremely costly and they would also not be workable.

Photo of John Baron John Baron Shadow Minister (Health)

All we are suggesting is that the person who oversees the investigation should be independent of the trust. That is not an expensive option; it is certainly not as expensive as the Government believe—a figure of £41 million has been mentioned. It is absolute nonsense to say that what we are suggesting—that someone independent should come in and head the investigation and oversee things—will create a vast increase in cost.

On the point about various options, I repeat to the Minister that this is enabling legislation; the detail will be in the regulations. We have put forward suggestions by way of probing amendments, but the principle has been the same: simply that the trust being investigated should not investigate itself. We have tabled probing amendments, but the principle has been absolutely constant: it is a question of independence.

Photo of Andy Burnham Andy Burnham Minister of State (Department of Health) (Delivery and Quality)

Let me remind the hon. Gentleman again that there was a very significant majority in this House when the matter was voted on on Third Reading.

Photo of Andy Burnham Andy Burnham Minister of State (Department of Health) (Delivery and Quality)

The hon. Gentleman says that that does not make it right, but that is what matters in our parliamentary process—and if he has plans to change it, I would be interested to hear them. As there was a majority of 95 in favour of our proposals, having made amendments such as we did and having listened throughout the progress of the Bill, I am surprised that we are still debating it.

Do the Opposition really think that, if a neighbouring trust looks at a complaint involving another local trust, that will give the independence that patients are looking for? As far as I can see, that would still be the NHS investigating itself. However, beyond that I am not persuaded by the Opposition's principal point. I am persuaded by a scheme where the NHS handles such situations better itself.

I am sure that Members of all parties are united by a wish to see a better culture at the first stage when a patient brings a complaint. I am sure that we all find that patients end up in our offices because they do not receive a satisfactory response at that stage from the trust concerned. The only way to change that is to have a system in which trusts engage with complaints in a more constructive way. I fail to see how having independent investigations, where people come into the trust concerned who are not employed by the trust or are non-executive directors of another trust, would foster a better culture in handling such matters.

Photo of John Baron John Baron Shadow Minister (Health)

Let me put my point to the Minister in another way. This Bill is a wasted opportunity, as is suggested by the Government's amendments, because there is nothing in it that cannot already happen now. Trusts can investigate themselves now, and the NHS Litigation Authority can make an offer now. The point of introducing independence is that that introduces something new that will give credibility and thoroughness to the fact-finding stage.

Photo of Andy Burnham Andy Burnham Minister of State (Department of Health) (Delivery and Quality)

I believe that the amendments that we have made to the Bill give precisely that. Because patients will be able to read in full their investigation report, they will decide for themselves whether or not that investigation has credibility. If they are not persuaded that it has, their statutory rights are not affected—to use the phrase. They can pursue that case further, because they have been provided with a full copy of that report. That is why I was disappointed to read the comments of Earl Howe, who seemed not to appreciate that we are providing the full details to patients. There is not a closed process, as he described it.

An amendment was made, in response to pressure from the hon. Member for Romsey, which is a material change to the Bill that strengthens the patient's ability to pursue their legal rights if they are not persuaded by the quality of the investigation. Such an investigation, carried out locally by a trust, would be assessed by the scheme authority—the NHS Litigation Authority—before any assessment of liability or quantum was made. It would assess the quality of that investigation and examine whether it had analysed sufficiently the questions that needed to be checked, so there would be a check on the process.

To be honest, there is no major disagreement between us, and I do not believe that the hon. Member for Billericay—hand on heart—really thinks that there is. The scheme has been improved because of parliamentary scrutiny, but if the investigation were independent, that would create a very different scheme, and I hope that he appreciates that.

Meaningful independent oversight will require additional resources in the form of increased staffing and additional bureaucracy to support those undertaking such oversight. They will need support staff to administer the flow of cases, and reciprocal arrangements between scheme members will need to be put in place. We should not forget that the scheme goes wider than NHS trusts and foundation trusts.

There are many unanswered questions about how the arrangement would work in practice. During debate in another place, Lord Warner asked a range of questions:

"Does he or she"— the overseer—

"sit on the shoulder of the investigator? How far do they follow through the investigation? Are they a duplicate investigator?"—[ Hansard, House of Lords, 25 October 2006; Vol. 685, c. 1247.]

He was right to ask those questions, but there are further questions. If an investigation is carried out by the scheme member but overseen by an independent person, will the scheme member's staff be answerable to their employer or to the independent overseer for the report's content? What if there is a conflict? What if the member carrying out the investigation and the independent overseer do not agree on the facts in the investigation report? Who resolves the conflict? All sorts of potential problems could arise. How can we possibly agree to amendments tabled and suggestions made by the Opposition when there simply is no workable detail to support the claims being made?

Photo of Graham Stuart Graham Stuart Conservative, Beverley and Holderness

I am extremely grateful to the Minister for giving way; he is being very generous. How do he and the Government plan to measure this culture change in the NHS? Are there means in place that will enable the House and those outside to see whether the Minister is right, and that the culture change has indeed been effected without the introduction of our kind of independence?

Photo of Andy Burnham Andy Burnham Minister of State (Department of Health) (Delivery and Quality)

The hon. Gentleman makes a very reasonable point. We are clear that we want the establishment of this scheme to lead to a much improved experience for the patient and to a reduction in the costs paid by the NHS in fighting clinical negligence claims. I am happy to give a commitment at this Dispatch Box to reviewing whether the scheme achieves the aims that we are setting out for it, and whether it does indeed promote a better culture in the NHS at local level to enable engagement with patient safety issues, because ultimately, that is what we are talking about. This is about clinical governance and patient safety: whether the scheme promotes a learning culture within local organisations, whether it provides a better experience for the patient seeking redress, and whether it enables trusts to reduce the amount that they pay out in fighting lengthy and often difficult legal cases.

However, I take the point made by Mr. Stuart, which is a fair one. We should review the scheme to see whether it achieves the objectives that I have set out. If it does not, perhaps other options could be followed, but I have been over this ground many times in preparing for taking the Bill through this place, and I am confident that we are doing the right thing. Many trusts are already adopting a very different agenda because of issues such as patient choice and the need to look more carefully at patient satisfaction. I am confident that a change is already being effected on the ground, but I am happy to agree with the hon. Gentleman that there should be an ongoing review of whether that meets the stated aims.

Photo of Graham Stuart Graham Stuart Conservative, Beverley and Holderness 4:00, 6 November 2006

The Minister said that one of the outcomes that he seeks is a reduction in the pay-outs made by trusts. Even if he is right and the Government's proposed system effects a cultural change, is it not possible that there may be an increase in pay-outs because of an NHS that better recognises the mistakes that it has made? I am grateful to him for being so frank and laying out possible measures, but I wonder whether the one that he has described is the right one.

Photo of Andy Burnham Andy Burnham Minister of State (Department of Health) (Delivery and Quality)

The hon. Gentleman is right. My predecessor acknowledged that this scheme might, by facilitating access to redress, lead to more people bringing forward cases and fewer people abandoning cases. As the hon. Gentleman knows, because he was on the Standing Committee considering the Bill, a high proportion of cases are abandoned.

The measure is not principally a cost-cutting scheme. What we want to do is reduce the money that is spent on fighting lengthy processes. That may lead to more money being paid out in redress to those patients who deserve that redress, but it should lead to a reduction—the hon. Gentleman has helpfully given me the opportunity to be clearer about this—in the costs spent in fighting a legal process. As he knows, they can be considerable.

I was putting on record some of the complicated questions that have yet to be resolved. Someone has to have the final say, and that person has to be knowledgeable about the facts of the case and how the investigation has been undertaken so that they are able to take decisions. It must be someone who has been involved throughout the investigation process, not simply someone who reads the final report.

The arguments about costs and bureaucracy will not go away. We were told in another place that surely the cost implications were de minimis, but members will still have to carry out their own investigations so there will be duplication and therefore extra costs. Members will not hand over responsibility to another trust.

I have described the improvements that we have made to the Bill as it has gone through this House. I again pay tribute to colleagues who helped us in that process. As a result, patients will be given their investigation report—let me be absolutely clear about that—and they will also be given a report on the action to be taken to prevent the same mistake from happening again. That, in my view, is overwhelmingly what patients want. It will be a transparent process; patients will know full well whether the facts of their case have been looked into fairly and fully.

We agree with Opposition Members that the scheme will be given credibility by an open and robust investigation, but we have already provided for that. Credibility will not be given by one scheme member investigating another. We have also tabled an amendment that specifically enables a scheme to provide for investigations to be overseen by a person of a specified description. That overseer will not be independent, but the amendment demonstrates further our commitment to ensuring a thorough local investigation. The scheme can specify the qualifications and experience that the person who oversees the investigation by the scheme member at the local level must have. That will benefit patients. They will know who has overall responsibility for the investigation into their case and who to contact about their investigation.

I believe that I have been over most of the ground that we have covered and I hope that I have put before the House some of the areas where we have made changes and have sought to be reasonable. I am concerned that the amendments that we passed on Report were not fully appreciated by another place and I urge it to consider the fact that they were passed by a significant majority in this House. I hope that, following today's proceedings and the amendment that we are making to improve further the accountability of the NHS redress scheme, the scheme will now move forward and do what we want it to do—get on with the job of building a better and more responsive complaints-handling process at local level in the NHS and provide a much more satisfactory outcome to patients who bring forward the complaints that we, as Members of Parliament, have to deal with.

Photo of John Baron John Baron Shadow Minister (Health)

As the House well knows, the NHS Redress Bill returns, having been amended in the House of Lords. This is the second time that the House of Lords has rejected the Government's proposal. More than 30 Cross-Bench peers voted for our amendment, whereas only one voted against it. That sends a clear signal that our amendment was passed because it is right in principle. It is about patient interests, not party politics.

As we all know, clinical negligence procedure is a mess. We can all agree on that. It is complex, unfair, slow, costly and wasteful. We welcome the Government's attempts to address those problems but are concerned that the balance between the interests of patients and the health service, as envisaged by the Government, is not right. The redress scheme proposes a genuine alternative for the high volume of modest-value cases. We fully support those good intentions and want the Bill to succeed, but the Government's proposals are fundamentally flawed and do not best serve patient interests.

Time and time again, patients tell us that they want an explanation of what went wrong and an apology if appropriate. They want to ensure that lessons are learned for the benefit of others. Compensation does not necessarily rank high in people's priorities. The Government's amendments do not, in our view, best meet those priorities. As the Minister has highlighted, the reason for that revolves around the issue of independence. The reason why the Bill has been sent back to us by the House of Lords is that their lordships believe that the investigation of facts under the scheme ought to be independent of the trust in question, whereas the Government believe that it ought to be a completely in-house process. Their lordships are right. Patients will not have confidence in an in-house system. That is why we shall oppose the Government's solution.

Opposition Members believe that the investigation should be overseen by someone who is independent and unconnected with the trust and with the NHS Litigation Authority. To us, independence is a fundamental principle of natural justice that is enshrined in the rule against bias: no man should be judge in his own case or cause. That avoids a conflict of interest. That is the one common concern of the many organisations outside this place that we have consulted. Even within this place, the Constitutional Affairs Committee, in its report, "Compensation culture", last March, stated:

"We are concerned that if the organisation which is responsible for defending trusts and hospitals is also charged with running the scheme, there may be a perception (whatever the reality) of a conflict of interest."

That is terribly important. We can all agree that the interests of the patient must come first, but the best way of guaranteeing those interests is to ensure that the investigation is independent so that it has credibility.

Photo of Andy Burnham Andy Burnham Minister of State (Department of Health) (Delivery and Quality)

I am listening carefully to the hon. Gentleman's argument. Given that this is a first-stage complaints process, can he name one other public body, or any other organisation at all, that has independent investigation at the first stage?

Photo of John Baron John Baron Shadow Minister (Health)

The Minister is going back on himself in one respect, because the whole point of the scheme is that it should provide a genuine alternative to litigation. One key reason why people go to court is that they want to establish the facts in an independent manner. If this scheme is meant to be a genuine alternative to litigation, we should introduce that concept of independence in the scheme itself. Most organisations outside this place would agree with that. It is important to recognise that, if the scheme is an alternative to going to court, we should have regard to that basic need. Patients go to court because they want an independent assessment of the facts. I am afraid that the Government's proposals fail to recognise that basic point.

I suggest to the Minister that independence is important for another reason. We all want to help to bring about a cultural change within the NHS towards greater openness and transparency. What could be more open and transparent than inviting someone who is independent of the trust to oversee the investigation into all the facts? To most objective observers, a trust investigating itself will not necessarily lead to a cultural change. After all, that can happen now without the Bill: trusts can already investigate themselves and the NHS Litigation Authority can already make an offer of compensation. The Bill does not change that, yet the Government suggest that we need the scheme to encourage such a cultural change.

By contrast, what seems to be more important to the Government—the Minister has been honest enough to admit this at the Dispatch Box, as he has before—is the ownership of the process itself. They freely concede that the scheme is not independent. As the Minister clarified, the amendment in lieu would not introduce the concept of independence in any way. The Minister argues that, if trusts have ownership, they will somehow be more likely to bring about a cultural shift in openness and transparency. Most people will find that entirely contradictory. The Government are trying to put the cart before the horse. NHS ownership of the scheme might be appropriate for a health system that is characterised by openness and transparency, but it will not in itself get us to that point, as history has shown.

As we have heard, the Government wish to introduce elements of independence, rather than to embrace independence itself. It might be worth while for the House to scrutinise quickly those elements of independence. The Government suggest that legal advice will be available prior to any offer. We are happy with the concept of legal advice being made available at the time of an offer because legal rights would be considered at that point, but giving legal advice prior to an offer will not make the investigation of the facts independent. Such legal advice will introduce adversarial elements, even though legal rights are not being determined. It will cause a replication of the cost and complexity of litigation.

The Government also argue that the scheme will make available expert advice, but such advice should be independent anyway. We do not need a scheme to make medical expert advice independent. Meanwhile, it is not clear whether medical reports will consider fact, fault, causation and condition, or whether they will be disclosed.

The Government suggest that the fact that patients will be able to complain to the ombudsman is another important aspect of independence. However, that applies to complaints of maladministration, rather than substantive investigations of the facts. The Government also point out that, if patients are not happy with the findings of the scheme, the courts will be available. Perversely, that shows the failure of a scheme that purports to provide a genuine alternative to litigation. Advancing such an argument almost defeats the purpose of the scheme itself.

Unless an investigation of the facts has a badge of independence to reassure patients, the scheme will add nothing whatsoever to what can already happen. As we have mentioned, NHS trusts already have the ability to investigate themselves and the NHSLA has the power to make an assessment of liability and, when appropriate, offer compensation. I put it to the Minister that, unless the Government concede on independence—I do not expect that they will—the Bill will be a wasted opportunity in many respects.

I wish to touch briefly on separation, because I think that it is relevant to independence. The scheme must be a two-stage process with a strict separation between the functions of fact-finding and fault-finding. An investigation of what happened should not be contaminated by considerations of who was to blame. There is ample legal authority for the rationale of such separation—the principle behind the Inquiries Act 2005 and the coroners' courts—so it is happening throughout the country.

There is also ample case law of the Court of Appeal that recognises the rationale for the separation of fact-finding from determination of legal liability. We envisage a wide-ranging inquiry that may consider matters of medical professional practice, but does not consider issues of legal liability. That limitation is appropriate because the inquiry is not a court: legal rights are not being defended or asserted.

The Government appear to concede that there is, in practice, a two-stage process in which fact-finding and fault-finding are separate. In Standing Committee, the Minister said:

"The scheme, as envisaged, would separate fact-finding from fault-finding in that, locally, it is for the NHS body to carry out the investigation into the facts, and it is then for the scheme authority to consider whether there is liability and, if so, what it should be."—[ Official Report, Standing Committee B, 13 June 2006; c. 67-68.]

The Secretary of State made a similar point in this Chamber on Second Reading.

Does the Minister stand by those remarks? Will he guarantee that there will be a separation of functions between the trust investigating what happened and the NHSLA considering issues of liability? Will he confirm that the body responsible for defending the NHS against claims—the NHSLA—will have no role in determining the facts of the case? I invite the Minister to respond now to those questions.

Photo of Andy Burnham Andy Burnham Minister of State (Department of Health) (Delivery and Quality) 4:15, 6 November 2006

I am happy to do so. I do indeed stand by what I said in Committee, but I think that the hon. Gentleman has in mind a more rigid separation than we do. As I described in my opening remarks, we believe that there will be discussion between the scheme authority and the local trust on the quality of the report and of the investigation, on whether there are gaps and on whether further information needs to be provided. I have in mind a more iterative process and more exchange of information between the bodies. If the hon. Gentleman is asking me to confirm that it is principally the trust's responsibility to carry out the investigation and the scheme authority's role to advise on liability and quantum, I am happy to do so.

Photo of John Baron John Baron Shadow Minister (Health)

I thank the Minister for that clarification. For the record, I am not suggesting a rigid structure—far from it. All I am suggesting is that the function of fact-finding should be confined to the trust investigating at the fact-finding stage. That should not prevent correspondence, liaison and communication between the NHSLA and the trust, as long as the NHSLA plays no part in determining the facts of the case. It must be absolutely clear that the trust determines the facts. Can the Minister confirm that?

Photo of Andy Burnham Andy Burnham Minister of State (Department of Health) (Delivery and Quality)

Yes, I can. It will be the trust's responsibility to carry out the investigation locally.

Photo of John Baron John Baron Shadow Minister (Health)

In the light of the Government amendment in lieu, will the Minister explain why he will not allow that separation to be spelled out on the face of the Bill?

Photo of Andy Burnham Andy Burnham Minister of State (Department of Health) (Delivery and Quality)

It is because we have in mind a unified, coherent scheme wherein trusts work closely with the scheme authority to ensure both that thorough and detailed investigation reports are produced and that, based on those reports, correct offers of settlement are made. We have in mind a single scheme, not a multiplicity of schemes once the investigation stage is complete, as the hon. Gentleman seems to envisage. We propose a coherent whole so that we might avoid the need for the legal process and thereby improve the patient experience and reduce the cost to the system as a whole.

Photo of John Baron John Baron Shadow Minister (Health)

I suggest to the Minister that his remarks are somewhat contradictory. He has made it clear at the Dispatch Box that he accepts that the fact-finding stage will remain just that—a process to determine the facts—and it will then be up to the NHSLA to assess liability. I therefore cannot understand why that clear separation of the two functions cannot be spelled out on the face of the Bill.

I ask the Minister to turn his attention to the investigation reports. Clarity about what the report covers is important. Will the report made available to the patient cover only the fact-finding stage, or will it include the fault-finding stage as well? That is important. Any offer will, presumably, be made on a without prejudice basis—in other words, it cannot imply liability—but the reports will not ordinarily be disclosable if they include the fault-finding stage, because they might imply liability. The reports should therefore be restricted to the fact-finding stage only; otherwise, the scheme risks being functionally incoherent. Will the Minister clarify that point for the House?

Photo of Andy Burnham Andy Burnham Minister of State (Department of Health) (Delivery and Quality)

The intention is to make the report available to the patient at the point of an offer being made. I stress that it is the trust's report—the local investigation carried out by the trust—that will be made available. The intention is that that would be made available simultaneously with an offer being made, so the two documents would be read together by the patient.

Photo of John Baron John Baron Shadow Minister (Health)

I take it from that response—if I am wrong, I invite the Minister to correct me—that the report would be restricted to the fact-finding stage and the investigation undertaken by the trust.

Photo of Andy Burnham Andy Burnham Minister of State (Department of Health) (Delivery and Quality)

I clarify again that the report would be the product of the local investigation carried out by the trust. I would encourage trusts to go further than simply laying out the facts. If they wanted to make an apology to the patient at that stage or explain what process changes have been made to prevent the same thing from happening again, it would be right and proper for them to do that. I would encourage them to do so, rather than delivering a mechanistic report dealing solely with the facts of the case.

Photo of John Baron John Baron Shadow Minister (Health)

I am happy to agree with the Minister. I do not think we have ever disagreed on that point. The trust's role is also to give an explanation and an apology, if appropriate. I thank the Minister for clarifying that the report will cover the investigation undertaken by the trust into the facts. That is extremely important.

I know that others wish to speak, so I shall touch only briefly on one or two related issues. We all agree that legal advice should be available at the point when an offer of compensation or settlement is made, since legal rights may be determined if they are waived as part of a compromise agreement. However, in an attempt to bolster the independence and credibility of their scheme, the Government have proposed that free legal advice should be made available before legal rights are determined.

That, in our view, will merely encourage confusion between fact-finding and fault-finding within the scheme, for it is the job of lawyers to assert or defend legal rights. Our concern is that accusations of blame will contaminate the fact-finding process. That will lead, in contrast to what the Minister suggests, to a more closed and defensive culture among NHS staff. As a result, important lessons may not be learned. Such an approach contradicts the Secretary of State's opinion on Second Reading that lawyers should be kept out of the investigation.

In our view, lawyers are not required during the fact-finding investigation, since legal rights are not being asserted or defended. Much has been made of the contribution of so-called specialist lawyers. The Minister referred to

"a specialist quality mark in clinical negligence."—[ Hansard, 13 July 2006; Vol. 448, c. 1563.]

Policy and decision making must be based on evidence. I am not aware of evidence of better success rates of specialist lawyers.

The evidence that I have seen tends to show that their success is comparable to non-specialists. Action against Medical Accidents—AvMA—makes the following statement in its promotional literature:

"The evidence shows that specialist solicitors are much more likely to make an accurate assessment of the chances of success in claiming compensation for clinical negligence".

I have asked AvMA to produce the evidence, which it has been unable to do. It should make it clear in its promotional literature that there is no evidence to substantiate its claims. I believe it will eventually be required to do that. That is important, because if the Government seek to bolster the independence and credibility of the scheme by involving specialist lawyers, the performance of such lawyers must be measurable and stand up to independent scrutiny.

Photo of Siôn Simon Siôn Simon Labour, Birmingham, Erdington

I declare an interest as a trustee of AvMA. In the hon. Gentleman's view, do non-specialists with no particular knowledge or expertise in a subject have knowledge and expertise as good as people with many years of in-depth knowledge and expertise in that subject, and are they therefore likely to be as successful?

Photo of John Baron John Baron Shadow Minister (Health)

I can understand why the hon. Gentleman asks that question as a trustee of AvMA. However, whenever we have asked AvMA to provide evidence to substantiate that claim, it has been unable to so; eventually, it will have to address that point.

We share and support the Government's good intentions as regards providing a genuine alternative to litigation, but the issue of independence is of such crucial importance that their lordships were right to send the Bill back for further consideration. Independence will make the scheme more credible in the eyes of the patient and will promote a culture of greater openness in the NHS. I therefore invite the Minister, even at this late stage, to agree with the Lords about the importance of independence and the separation of fact-finding and fault-finding; I think that he has done so on the latter. If he does not agree with the concept of independence, patients will be the poorer for it, and we will therefore have no alternative but to ask the House to oppose the Government's amendment.

Photo of Sandra Gidley Sandra Gidley Shadow Minister, Health

I support the comments made by Mr. Baron, who has gone into the issues in some depth. It is a good job that I did not prepare such a lengthy and in-depth speech, because I would not have had time to deliver it.

There is broad agreement on the general principles of the Bill, which has been welcomed in all parts of the House. It is right and proper that patients are encouraged to complain and that trusts are engaged proactively in that. However, throughout the Bill's passage, Liberal Democrat Members have tried hard to establish two clear principles: a clear separation between fact-finding and fault-finding, and the independence of the process. It has become gradually more apparent that the Government intend that investigations should be thorough and that all the facts should be established before an inquiry is handed over to the next stage. We would prefer a slightly more rigid separation, but we can broadly agree that everything is moving in pretty much the right direction. However, there remains a problem with the NHS Litigation Authority taking over at that stage, because its job is, in effect, to protect the NHS from over-large claims and often to challenge such claims. Rightly, part of its remit is to protect the public purse, but that seems counterintuitive as regards the stated aim of the Bill, which is to be on the side of the patient. Many patient groups perceive the NHSLA to be on the side not of the patient but of the NHS. However, this is not the place to rehearse those arguments at length.

In the time that I have left, I want to concentrate on the outstanding point of difference—independence. During the Bill's passage, there have been numerous attempts to introduce different mechanisms for dealing with that problem that the Minister could accept. He has been generous in other parts of the Bill, so I hope that he will forgive me for saying that he seems to be bogged down in those mechanisms and has found fault with each idea without recognising the broad principle. When we saw the Government's amendment, our first thought was that it could represent a concession whereby the Government could introduce independence if they so wished, but sadly that has proved not to be the case.

If the Minister will not listen to Opposition Members on this matter, perhaps he will be more persuaded by others. When the Bill was introduced, the Patients Association said:

"The Government has shied away from the Chief Medical Officer's recommendations, only two years ago, and wants to introduce a system that is unfair, is not independent and less rigorous."

Dr. Gerard Panting of the Medical Protection Society made a slightly different point when he said that, for the NHS redress scheme to command the confidence both of the public and of health care professionals, it is important that independent advice be available. Most of the patient groups that I have spoken to have expressed concern that an in-trust investigation would not be independent.

People with real expertise have been involved with this Bill in the other place, including my noble Friend Baroness Neuberger, who said:

"The Minister will forgive me if I go back to an earlier time in my life, when I was part of the advisory group that worked up the previous complaints system. We all, in good faith, believed that an in-house complaints investigation system could work. He will also know, because this will have landed on his desk now and in previous incarnations, that we were wrong. As an NHS chairman, like the noble Baroness, Lady Murphy, I chaired a community health service NHS trust and had to sign off the letters responding to complaints. Very often, I felt that the trust investigated itself fairly. Sometimes I did not. Either way, it was equally clear that the punters outside—the patients and their families—were dissatisfied because no one outside had had a proper look."—[ Hansard, House of Lords, 25 October 2006; Vol. 685, c. 1243.]

Clearly that is something that we want to avoid. I believe that the Minister is well intentioned, but I hope that he will learn from the experience of others that this provision is potentially flawed.

An independent overseer would be in a better position to identify the organisational dysfunctions that we must acknowledge occur in some organisations. I am pleased that the Minister has said that he will review the issue. Will he describe the time scale involved? Will he also consider introducing either a pilot scheme or enabling legislation so that trusts may choose whether to have an independent overseer? Alternatively, there could be a few experimental areas in which independence is tried out, so that when the system is reviewed, we can make a full comparison to determine which method works best in the interests of patients.

Question put, That this House disagrees with the Lords in the said amendment:—

The House divided: Ayes 285, Noes 187.

Division number 339 Orders of the Day — Clause 6 — Proceedings under scheme

Aye: 286 MPs

No: 187 MPs

Aye: A-Z by last name

Tellers

No: A-Z by last name

Tellers

Question accordingly agreed to.