Anne Begg (Aberdeen South, Labour)

I remind the Committee that there is a money resolution in connection with this Bill, copies of which are available in the room. I should also like to remind Members that adequate notice should be given of amendments. As a general rule, my co-Chairman and I do not intend to call starred amendments. Please will all Members ensure that mobile phones, pagers and so on are turned off or in silent mode during our sittings. It will be in order for hon. Gentlemen and hon. Ladies to remove their jackets if they so wish. I was going to be cruel and make them sweat through the summer months. It is a bit cooler today, but I suspect that it will get quite warm. The debate on the programme motion may continue for up to half an hour. I call the Minister.

Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)

I beg to move,

That—

(1) during proceedings on the NHS Redress Bill [Lords] the Standing Committee shall (in addition to its first meeting at 10.30 a.m. on Tuesday 13th June) meet—

(a) at 4.00 p.m. on Tuesday 13th June;

(b) at 9.00 a.m. and 1.00 p.m. on Thursday 15th June;

(c) at 10.30 a.m. and 4.00 p.m. on Tuesday 20th June; and

(d) at 9.00 a.m. and 1.00 p.m. on Thursday 22nd June.

(2) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 4.00 p.m. on Thursday 22nd June.

May I begin by welcoming you to the Chair,Miss Begg. It is a pleasure to serve under you. I am glad that we can get off to an agreeable start and that it will not get too hot in the room. We had a good debate on Second Reading. The Bill received broad support from across the House. I hope that the time we have allotted in this programme motion will allow members of the Committee to cover the detail in full because we do need to do that. I also welcome the hon. Member for Billericay (Mr. Baron) and the hon. Member for Eddisbury (Mr. O'Brien), a fellow north-west Member. I see the hon. Member for Southport (Dr. Pugh) too, so it is quite a north-west triumvirate.

I was grateful to both Opposition Front Benchers for their support on Second Reading. I think that it indicates broad assent to the principles of the Bill. That is not to say that there are not issues of substance that we will want to consider carefully, but I think that we have allotted sufficient time for our debates. May I welcome particularly the hon. Member for Romsey (Sandra Gidley)? She and I served on the Health Committee what feels like many years ago. I am pleased to be working with her again on this Bill.

I should like to say a word about Labour members of the Committee, particularly my hon. Friend the Member for Birmingham, Erdington (Mr. Simon), who works closely with the organisation Action against Medical Accidents. I am pleased that he is serving on this Committee. We look forward to his contributions. I hope that where there may be differences of emphasis between us we can work through them in a spirit of co-operation and agreement, as is normally the case with my hon. Friend. I am trying to emulate his style: I may grow my hair as long his, although it may soon be ruled out of order.

There are Members on both sides of the Committee who take a detailed interest in this subject. As I said on Second Reading, Members of Parliament gain expertise and knowledge of it through their efforts to help constituents along the difficult road towards a resolution and, dare I use that word, “closure” of their experience in the health service. We know how difficult that road can be at times. We know the obstacles that can be thrown in front of people seeking redress. I hope that in making our comments we can reflect on the experiences that all of us have had cause to work through. I hope that the Bill will benefit from that informed comment.

Finally, I pay tribute to the usual channels in scheduling our eight sittings. I was relieved to see that careful attention had been paid to proceedings in Germany. I am delighted that we should be able to get out in good time for kick-off on Thursday and then again next Tuesday. I do not know whether it had more to do with luck or good planning. My hon. Friend the Member for Ogmore (Huw Irranca-Davies) is a fiery Welshman, so perhaps he thinks that we will leave the Committee for a dose of disappointment. He has helped to make me feel happy, relaxed and without needing one eye on kick-off time, which should aid our proceedings.

We have an excellent Committee of Members with a broad range of experience across the health service and in the matters to be considered. We have given sufficient time to do justice to the complex issues involved, which are important to our constituents.

John Baron (Shadow Minister, Health; Billericay, Conservative)

I also welcome you to the Chair, Miss Begg, and I look forward to your chairing the Committee as it proceeds. I thank the Minister for his kind words. As for the football arrangements and whether they were a matter of planning or good luck, I suggest that they were one of planning on our side, and good luck on his, but the bottom line is that we have got there anyway.

I shall say a few words of overview of the Bill. It stands as we like it, as the Committee knows. I thank their lordships, in particular my noble Friend Earl Howe on behalf of my party and Baroness Barker and Baroness Neuberger, who speak for the Liberal Democrats, for their amendments, as a result of which we have a much improved Bill before us. Our position is clear: we would like it to be left as it is, because we believe it to be far improved from when it was first brought to the House of Lords in October.

The Minister talked about consensus, of which there was a great deal on Second Reading. The Government know that the Opposition support their attempts to  address the problem of clinical negligence litigation. The process is currently complex, costly and long drawn-out. Most clinical negligence cases are funded by legal aid, yet most fail, at great expense to the NHS and the taxpayer. That money could better be directed towards patient care. However, most people do not qualify for legal aid, so they want a credible and independent alternative to going to court. The NHS redress scheme could offer that alternative. The fundamental divide between us and the Government is that, whereas the Secretary of State and the Minister envisage a scheme that would effectively make the NHS judge and jury in its own cause, we believe that investigation of what has gone wrong in a case ought to be separated from the process of the NHS assessing its own liability and making an offer.

What is more, the investigative process must be independent, like the coroners’ courts and the system provided by the Inquiries Act 2005. As the Government intend to reverse our key amendments made in the Lords, I shall ask the Minister to justify removing from the new scheme the essential feature of independence, which has the support of the Law Society and Action against Medical Accidents. I shall also ask him to explain both how his arrangements will create independence and the costs that he has attributed to our scheme, which seem to be the Government’s only main argument against it. They suggest that increased costs are the reason why we should not proceed with the Bill in its present form.

As can be seen from our amendments, I intend to focus on the key parts of the Bill, particularly clauses 6 and 12. Their lordships did an excellent job through their probing amendments, and the arguments that were made are on record, so I do not see why we should repeat them here. I hope that the Minister will be generous in taking interventions so that we can have a meaningful debate, to which I look forward.

Sandra Gidley (Shadow Minister, Health; Romsey, Liberal Democrat)

I, too, welcome you to the Chair, Miss Begg. I also welcome the Minister to the consideration of his first health Bill. I do not know whether it is worrying or reassuring that we have a Minister with experience in the field of health, but I look forward to working with him. I do not intend to repeat what has been said, but I endorse the remarks by the Conservative Front-Bench spokesman. Our two parties did work very closely together in the Lords and we prefer the Bill in the shape it is in. Ultimately we all want to see a better system for patients. Although we differ on the way forward, it would be nice to think there was some consensus as I gather that those in the other place are very keen to keep what they now have. Any flexibility on behalf of the Government would be very welcome.

Sandra Gidley (Shadow Minister, Health; Romsey, Liberal Democrat)

I beg to move amendment No. 10, in clause 1, page 2, line 6, leave out subsections (6) and (7).

Anne Begg (Aberdeen South, Labour)

With this it will be convenient to discuss amendment No. 11, in clause 1, page 2, line 26, leave out ‘or (7)'.

Sandra Gidley (Shadow Minister, Health; Romsey, Liberal Democrat)

On Second Reading we raised concerns that the Bill deals exclusively with the secondary care sector. Despite Government assertions to the contrary, there is no good reason why any part of the health service should be excluded from these provisions. This is particularly so because over the last few years there have been significant changes in the way many health services are delivered. Now, many services that used to be the preserve of the hospital sector—the secondary sector—are being delivered in primary care settings or even at home. The latest Government White Paper endorses the move to care in home-based and community-based settings.

As there is so much churn in the system, boundaries between secondary and primary care responsibilities are increasingly becoming blurred. For example, some treatment could be initiated by a doctor in a hospital but delivered by nurse practitioners or doctors in the community. The argument has been made that doctors have professional indemnity insurance, but it is not quite so clear cut for other members of the health care team who work across the boundaries of primary and secondary care. It is difficult to see where they slot neatly into the picture.

The amendment will make life easier for the Secretary of State if she decides that the Government have got it wrong because it will enable the redress scheme to extend to primary care by means of regulations as opposed to primary legislation. This takes into account the complications involved in extending the scheme to primary care.

Bearing in mind the Government’s long-term aim and the churn in the system, it would seem sensible to facilitate any future change rather than say we will sit back and review it and in three years’ time think about whether we need any more secondary legislation. The majority of NHS care is provided as primary care, and to exclude patients harmed by NHS primary care from the redress scheme would be unfair and inconsistent.

The amendment allows the Secretary of State to introduce the redress scheme in stages. For example, it could at first apply only to hospital care but be extended to primary care later, without having to go through primary legislation. If the Government saw that there were problems with the implementation of the scheme, the amendment would enable the problems to be redressed fairly quickly.

There would also be advantages for GPs and other primary care practitioners in bringing them within the scheme. In the current system, for example, injured patients have no option if they wish to obtain compensation for negligent treatment by a GP other than to sue that individual GP. A lot of patients find it difficult to take action against a GP because the GP is generally the health practitioner with whom they have built up a relationship and have the greatest contact. It is also very stressful for a GP to be sued—more so than if they were covered by an NHS indemnity, like hospital doctors are.

To extend the scheme to primary care is also more in keeping with the policy of moving away from a culture of individual blame to corporate accountability. There is also an issue about the GPs paying their premiums to the medical defence unions. Some of the medical defence unions are against the extension to primary care, and one wonders if there is a slight vested  financial interest in that objection. In many ways, this is a probing amendment to extract from the Minister further clarification of how the success of the scheme will be reviewed and what the likely timetable for change will be.

John Baron (Shadow Minister, Health; Billericay, Conservative)

I listened with care to the hon. Member for Romsey. The trouble that we have with the amendment is that it proposes such a fundamental extension of the scope of the redress scheme that it requires a review by Parliament. If the amendment were allowed to proceed, it would in effect extend the redress scheme to primary services by secondary legislation. We have two concerns about this.

Most care is delivered as primary care, so restricting the scope of the redress scheme to secondary care is to agree to a de facto pilot scheme. It could be argued that extending the scheme to include primary care would be too big a step too soon, given that we do not know how the redress scheme in its present form will work.

There is also an issue about organisation. We know that the NHS Litigation Authority is primarily concerned with secondary care and that medical defence organisations such as the Medical Protection Society and the Medical Defence Union are concerned with primary care. By extending the Bill one could envisage organisational difficulties. In summary, I would suggest that the amendments are a little bit too much, too soon.

John Pugh (Shadow Minister, Health; Southport, Liberal Democrat)

Does the hon. Gentleman accept that the boundary between primary and secondary care is increasingly going to be blurred? The Government are talking about courses of treatment based on tariffs that are going to be unbundled and distributed between primary care and secondary care providers. When treatment turns out wrong, will we take action about only one section of the treatment?

John Baron (Shadow Minister, Health; Billericay, Conservative)

I accept that. It is a valid point. Increasingly the emphasis in health care—this view is shared on both sides of the House— is on looking at the patient journey as one and bridging the gap between health and social care. There are so many unknowns in the operation of the redress scheme as presently constituted. This is an enabling Bill with very little detail and to extend it to the whole of the NHS would be a step too far too soon at this point. Let us see how the redress scheme operates first in a de facto pilot scheme and we can review the situation in the years to come.

Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)

I am not unsympathetic to the points that the hon. Member for Romsey made; I said as much on Second Reading when she raised this point. She is right that the proposal very much picks up the direction of travel within the health service towards more care being delivered closer to people’s homes and, where possible, in primary care facilities. She is not wrong and nor is she wrong to raise the issue about boundaries becoming increasingly blurred, but I will  deal in detail with these points. Although I do not have a closed mind on this issue, I think that now would be the wrong time to broaden the scope of the scheme in the way that the hon. Member for Billericay suggested.

Sandra Gidley (Shadow Minister, Health; Romsey, Liberal Democrat)

I understand what the Minister is saying. Who will be to blame where a mistake has been made that is partly the result of an error in a hospital sector that was not picked up by somebody in the primary sector? Will any individual who suffers ill effects or has to have time off work as a result of that error have to sue their GP? Will they have to go through the NHS redress scheme? In those cases, how are the two sectors to work together?

Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)

The case would be picked up by the scheme if the care had been commissioned and provided in a secondary care setting. I am acknowledging that she is right that there may be blurred boundaries. Clause 1(5)(b) contains a provision to lay out in regulations some of those blurred boundaries and to give some clarity via secondary legislation. That is important because, as things change, it is important to have the ability to respond quickly via secondary legislation.

I want to draw the hon. Lady back to the principle. While I am not unsympathetic, the way in which this scheme is constructed has more to do with the structure of the national health service since it began, and the status of primary care practitioners as independent contractors to the service. At present, the way in which litigation is handled by the national health service is considered separately. As the hon. Member for Billericay was saying earlier, the amendment would broaden the scope of the scheme enormously, but it would be a mistake to do so. The amendment would take us into a whole new terrain, where the national health service would pick up—via a fast-track out-of-court settlement scheme—the liabilities of primary care practitioners who, as the hon. Lady rightly said earlier, are currently covered by personal indemnity insurance. So that would be a major change.

Let me go through some of the issues in detail so that I can directly answer some of the hon. Lady’s concerns for the record. Amendment No. 10 would widen the potential scope by removing a specific exclusion laid down in the Bill. During a debate in the other place, concerns were raised that the scheme was incapable of adapting to the increasing diversity of NHS health care provision. We acknowledged that some services could be in a grey area between primary and secondary care, especially as the NHS moves towards provision of traditionally secondary care in a primary care environment.

We tabled a series of amendments to clause 1 which would enable us, via secondary legislation, to list services outside hospitals that the scheme may cover. This gives us flexibility and allows the scheme to be adapted in the light of changing methods of service provision and delivery.

We consider it appropriate to set out in secondary legislation details of which hospital services should be designated as qualifying services for the purpose of the scheme. Our intention is that the power may be used to  cover the kind of services usually provided in a hospital. For example, pathology and laboratory services can now be provided either in hospitals or in freestanding mobile units. Other examples of services that can be provided in hospital but in future may be provided more frequently outside the hospital setting are palliative care and ambulance services. So there is a broad area that secondary legislation can begin to be specific about. We think that that is the right way to structure the Bill at this time.

I understood the hon. Lady’s point about the relationship between the GP and the individual patient and the stress that can be caused to both parties when an individual makes a complaint against a GP. It is a valid point and one that has been made by Action against Medical Accidents—AvMA—in its documentation. That is the kind of point that we would want to consider in more detail once the NHS redress scheme had been operating for some time; we would look at whether there was a case for extending its reach.

However, we remain convinced that primary care should remain excluded from the scope of the scheme and therefore we will oppose amendments Nos. 10 and 11. Extending the Bill to include primary care wholesale would be problematic because professionals cover their liability through private insurance arrangements, rather than through NHS indemnity insurance. Moreover, further consultation would be needed to develop a scheme that worked effectively in primary care and had the confidence of primary care professionals and insurers. The redress scheme has been costed only for NHS clinical work covered by the clinical negligence scheme for trusts.

The cost of including primary care within the scope of the Bill has been modelled by departmental economists as up to an extra £56 million per year. We are not resisting the amendment because of that cost—there may be good reason in future to accept that cost as a better way of providing redress in the primary care setting—but it is obviously a relevant factor at this point. As it is likely that any claims emanating from a primary care setting would be of lower value, given the nature of the procedures that are carried out at that level, it would raise bureaucratic questions about the level at which primary care practitioners, as opposed to a hospital trust or a primary care trust, were required to pay to become a member of the scheme.

Sandra Gidley (Shadow Minister, Health; Romsey, Liberal Democrat)

The Minister is rightly focusing on the financial aspects, but a big part of the thinking behind the redress scheme is that there is proper investigation and perhaps an apology or an explanation is offered to the patient. If a patient in primary care still has to go down the route of suing a GP, what do the Government plan to put in place so that the same sort of open culture—the willingness to be open about mistakes and to prevent future occurrences of such mistakes—can be achieved in primary care too?

Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)

The hon. Lady raises an important point. The Government already have in place mechanisms to ensure that best practice is shared across the NHS and that there is a culture of openness. The National Patient Safety Agency, for instance, is heavily involved in work in this area. I agree with her.  The outcome that she wants is desirable. I hope that the NHS redress scheme will have an influence beyond the number of people who come through the scheme, and will change attitudes and the culture in which problems are investigated by the health service at all levels. I hope that it will have an impact at an earlier stage—at the patient advice and liaison service stage—and further on in the process, too. It would be a positive change and we would want to see that spirit going through the whole system.

I agree with the hon. Lady’s objective. It is an important one to keep hold of. The vast majority of general practitioners do this very well and have clear procedures for handling patients’ complaints. Those procedures are used properly at the local level, with the involvement of the primary care trust. It is therefore not the case that there are no procedures in place: there are, and the vast majority of general practitioners use them successfully and to the satisfaction of their patients. I do not disagree that we can always try to improve the situation.

John Pugh (Shadow Minister, Health; Southport, Liberal Democrat)

Will the Minister help me with the economic modelling? Presumably a certain amount of litigation is taken already against primary care providers. Has that been factored into the calculations? Is the cost that he mentioned purely additional cost?

Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)

I will have to come back to the hon. Gentleman on that point. My note on the work that has been done by departmental economists describes the cost as being £56 million a year. I do not know whether that figure is based on the knowledge that more claims would come forward if there were such a scheme for primary care, or whether it is based on the current number of complaints. The estimated cost would be additional to what is currently spent, which suggests that the consideration of the figure has taken on board complaints that may not have been pursued if there were no such scheme.

John Pugh (Shadow Minister, Health; Southport, Liberal Democrat)

So is there no presumption implicit in the figures that people who currently litigate will transfer to the redress scheme, and so save the NHS money?

Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)

The presumption behind the figures is that it would cost an extra £56 million a year if there were such a scheme in place for primary care. Currently, cases are handled outside the NHS. An individual practitioner has his or her own professional indemnity insurance, and the arrangement exists outside the NHS. If a redress scheme covered primary care, it would absorb the cost.

As I said in response to the hon. Member for Romsey, we must consider the way in which general practitioners would be charged to be scheme members and what a fair structure would be. There would have to be different mechanisms in the scheme for big providers, such as acute trusts, and smaller providers. It is not appropriate to introduce that sort of administrative detail into the Bill. I do not rule it out in perpetuity, but at this stage it is important to establish a viable scheme that can do the job that we want it to do and that does not bite off more than it can chew.  Covering primary care would need careful consideration and consultation with professional bodies, which has not yet happened.

Clause 1(6) provides that primary medical services, primary dental services, general ophthalmic services and general and local pharmaceutical services will specifically be excluded. That will avoid the problems involved in extending the scheme to cover primary care wholesale. We have not allowed flexibility in the matter, because as the hon. Member for Romsey will know, the Delegated Powers and Regulatory Reform Committee does not like Ministers to take broad powers when they have no immediate intention to use them. It is right for the Bill to limit the reach of the scheme.

The hon. Lady asked for a timetable. Our intention remains that the scheme will be reviewed three years after its implementation, with a view to considering whether to expand its scope to cover primary care. As she can see, that would require primary legislation. I put it to her that it would be a major change and would require a major round of consultation with the British Medical Association, the Royal College of General Practitioners and other interested parties. All the administrative arrangements would then need to follow.

The scheme that we propose is the right one at this stage, and I hope that I have given the hon. Lady some encouragement by promising a review and saying that there may come a time when a future Government believe that a scheme covering primary care is the right way to go. Such a decision would probably arise from the scheme being set up successfully, establishing itself and doing the job for patients that we want it to do. Once that has happened, the argument for its reach to be broadened across the health service could be made. That is the right way to approach the issue.

I hope that the hon. Lady will see fit to withdraw her amendments.

Sandra Gidley (Shadow Minister, Health; Romsey, Liberal Democrat)

I thank the Minister for his comprehensive response. There are many complexities involved in including in the scheme people who are perceived as employees of the NHS but are actually contractors of it, so I understand the reluctance to include GPs at this stage. My concern was more connected with the other health professionals who deliver health care across the boundaries of primary and secondary care. As the Minister assures me that subsection (5)(b) will get round that problem and that the situation will be under constant review, I beg to ask leave to withdraw the amendment.