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

I beg to move amendment No. 15, in clause 3, page 3, line 4, at end insert—

‘(d) the production of a report on action being taken to reduce the risk of similar errors being repeated'.

Anne Begg (Aberdeen South, Labour)

With this it will be convenient to discuss amendment No. 18, in clause 6, page 4, line 17, at end insert—

‘( ) about the provision to a person seeking redress under the scheme of a report on the full findings of any investigations into an incident which is the subject of proceedings under the scheme and assessments of liability in tort under the scheme'.

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

The stated aim of the Bill is to ensure not just that there is financial compensation but that patients receive a proper report of what has gone wrong and that they are clear about what actions are being put in place to ensure that the same mistake is not repeated. On Second Reading there was consensus among hon. Members from all parties that if the problems that came to the notice of a constituency MP were investigated sooner and taken more seriously, if apologies were made and the patient was reassured that something was happening to prevent further mistakes, life would be much simpler, for the constituent’s MP if for nobody else.

Research has shown that most people’s motivation is to ensure that mistakes are not repeated. It is sometimes frustrating to receive a bland response saying, “Yes, we have got an action plan in place, so you can be reassured that this will not happen again.” Health professionals are not always open about sharing that action plan with others. That is the area that the amendments seek to address. Amendment No. 15 would make it a requirement that the provision of assurances that lessons have been learned and action will be taken to reduce the risk of errors being repeated is an essential part of the redress package. At the moment, it is not clear that that must happen. To our way of thinking, it is a fundamental part of the review.

I gather that there are plans for an annual report that will be anonymised. That is not enough for the individual patient who, having brought a complaint, wants to be absolutely clear that action is being taken in their local area, that they know what that action is and that there is openness and transparency about the process.

The Bill does not require any reporting of the results of investigations or assessments of eligibility for redress under the scheme. Only an offer of redress, apology and explanation is required for people who are assessed by the scheme as being eligible for redress. Those who are assessed as ineligible may get nothing at all. In order to make a decision as to whether to accept an offer of redress or accept an assessment of being ineligible for redress, it is important that the patient has the full facts and rationale for the decisions made. That is in the spirit of openness that the National Patient Safety Agency is trying to foster. It would clearly be unfair and unreasonable for such information to be withheld. It would seriously undermine the credibility of the scheme and the culture of openness that is aspired to.

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

We have a lot of sympathy with amendment No. 15. However, clause 10(2)(i) refers to reports being produced and to lessons learned. Having said that, the hon. Lady has made a powerful case for amendment No. 15. The bottom line is that research has clearly shown that when something goes wrong,  what patients want is often only an explanation, an apology and an assurance that the lessons have been learned. Compensation does not necessarily rank high on their list of priorities. Many patients just want to know that what happened to them will not happen to other patients in the health service. It is almost an altruistic approach: they are keen that lessons are learned for the benefit of others.

The open, independent fact-finding investigation that we propose reflects those priorities. Patient safety is promoted by ensuring that lessons learned are not lost. Amendment No. 15 reinforces that point and asks that a report be produced. Although, as I mentioned, reports are required in other clauses in the Bill, an individual report—rather than the annual report envisaged in clause 10—may be a worthwhile step.

It appears to many that the Government’s focus in the Bill on compensation does not reflect patient priorities. In some respects, their focus may subvert the purpose of the investigation. It also means that the importance of the explanation and any lessons learned risk being relegated. The production of a report based on an individual case may rebalance the situation somewhat. So I wholeheartedly concur with amendment No. 15 and am happy to support it.

I have more of a problem with amendment No. 18. The system in the Bill separates fact finding from fault finding. At the end of the fact finding, patients are at liberty to accept an offer from the NHS Litigation Authority, as determined by its internal procedures, or to go to a resolve-type scheme, to mediate in some other way or, as a last resort, to go to the courts if they wish to seek compensation. The crucial matter is that the facts, not the fault, are what is important under the scheme. In such circumstances, the report would not ordinarily be available. That is the way in which the law works. So, I am somewhat indifferent to amendment No. 18.

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

I will speak briefly in favour of amendment No. 15. It is, to some extent, pushing the envelope because it extends the giving of redress to include a report on similar cases and changes being put forward by the hospital to stop similar errors occurring. I can recall many cases to which the amendment would apply. My reason for supporting it goes back to a particular case in which an elderly gentlemen who was very ill—he subsequently died, although that had nothing to do with this episode—was asked to walk when he arrived at hospital because there were not enough wheelchairs. He had a very painful experience, when he should have been whisked into hospital in a wheelchair.

I was contacted by the family. It was perfectly apparent that they did not want money or any redress for their father, who was by then deceased. Nor did they want heads on the block. They just wanted to know that no such thing would happen again. When I investigated the matter, I found out anecdotally that there were enough wheelchairs in the hospital, but they were in the wrong places. In some cases, wheelchairs had been taken incorrectly by members of the public. There was something to be learned from the episode. The redress that the family wanted was that the message had gone to the hospital that this sort of thing should not happen again.

It is not my job to point out weaknesses in the amendment, but one weakness is that in some cases there will be no lessons to be learned. There is human error even in the best-designed schemes, procedures and protocols. People will ignore protocols or fail to carry out a scheme effectively. The amendment has force and it should be in the Bill.

Siôn Simon (Birmingham, Erdington, Labour)

It is a pleasure to serve under your chairmanship, Miss Begg.

I support amendment No. 18 and I agree with the two reasons given by the hon. Member for Romsey why the publication of a report makes sense. First, it will help those who may turn out to be entitled to redress to evaluate whether the redress offered is in their interests, and it makes sense for them to be provided with the full facts. Secondly, and more important, as the hon. Lady said the amendment is for those who may be deemed by any process to be ineligible for redress. It seems unlikely that those people are random strangers to whom nothing bad has happened who have walked in off the street and started claiming excessive amounts of compensation from the national health service.

At the very least, the people concerned must feel a strong sense of grievance. A report is all the more important if they have gone through a procedure and been told that, despite their strong sense of grievance, they are not eligible for redress under the new scheme or, presumably, under law. In those circumstances, it is all the more important that they be provided with a report that gives the facts and the outcome of the investigation, tries to lead them to an understanding of why their sense of grievance was objectively deemed to be misplaced and tells them why they are not entitled to the redress to which they felt they were entitled.

The Government should have a very good, strong reason not to give people simple information about what has happened to them and I hope that the Minister will be able to enlighten us in that respect. The amendment simply calls for the publication of a report, which should be available to the people who have been part of the process. To borrow and cross-apply a parliamentary phrase, a negative resolution or assumption should pertain in this case. There must be a very good reason indeed not to do what the amendment proposes, and I shall be grateful if the Minister will tell me what it might be

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

I understand where the hon. Member for Romsey was coming from in tabling her amendment. I also want to pick up on the closing comments of my hon. Friend the Member for Birmingham, Erdington. I accept that in many cases people do have a strong sense of grievance, and it still exists even if the scheme or the procedures that are in place have not been able to resolve it financially or to apportion liability. It is important to address the legitimate questions that people raise, but I do not think that anything that we are proposing rules that out. In fact, it facilitates precisely that process and enables people to have a greater sense that their complaint has been properly investigated and addressed. The hon. Member for Billericay was absolutely right to say that the vast majority of people  who come through the doors of our surgeries say something along the lines of, “I don’t want it to happen to anybody else” or, “I want to be sure that this cannot happen again”. Although they have felt personal confusion and distress, the overriding motivation is that what happened to them be exposed and that changes are made to the system so that the same thing does not happen to somebody else.

The way in which the Bill is drafted facilitates that process. The Bill does not need to lay down that a report has to be produced. I would refer the hon. Lady and hon. Members to subsections (2)(a) and (b). Obviously the giving of an explanation is in itself the preparation of a report. It might not be as formal as a report, but the giving of an explanation is essentially reporting on what happened, and that is clearly laid out in the Bill. The phrase “ordinarily to comprise” is used in clause 3(2), which lays down that that should be a matter of course.

One of the important benefits which the scheme is intended to provide is an improvement in the ability of the NHS to learn from its own mistakes. I do not believe that amendment No. 15 is necessary in order to achieve that. As others have said, the spirit is that complaints should be investigated before they are even brought by the patient and that there should be an open culture rather than a back-foot or a defensive culture. The Bill will deliver precisely that.

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

I agree entirely with the Minister that the Bill says:

“A scheme must provide for redress ordinarily to comprise —

(a) the making of an offer of compensation in satisfaction of any right to bring civil proceedings in respect of the liability concerned,

(b) the giving of an explanation, and

(c) the giving of an apology,”.

The point of the amendment is that we need to go a step further. The hon. Member for Billericay said that people often say, “I do not want this to happen to anybody else”. That is not addressed in the Bill. Patients often feel it is important to know exactly what measures are being taken to ensure that the mistake does not happen again. The Bill does not deal with that in the way that a modern NHS should.

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

I am sure that the hon. Lady will, like me, find that every case is different and that some have more merit than others. With regard to amendment No. 15, we agree that it is important that the facts are established and that they are reported to the individual; that the individual can comment on those facts and endorse them. She will agree that it is often a process of working through the individual, whether or not they accept the facts of a particular incident. The hospital comes back to them when the complaint is at the first stage. That is often the process—there is a to-ing and fro-ing about whether the “facts” themselves are correct. The hon. Lady is absolutely right, it is important and there must be that process so that people can have confidence in the facts.

I do not think it necessary to formalise that in the primary legislation in the form of an individual report  on every complaint that is brought. It seems to me that it would place an administrative burden on members of staff within the health service to require them to produce a report when the Bill itself says that the giving of an explanation is in itself a report on a particular incident.

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

The giving of an explanation may make clear what happened, but there is no compulsion to explain what measures will be taken to ensure that the mistake does not happen again. I accept the argument that one does not need to make a procedural change in every case. There is human error, but sometimes there are also ways in which human error can be factored out. Will the Minister consider a clause that would allow a patient to ask for an action plan or a report on what measures were being taken to prevent further recurrences? The patient should have access to such a report or plan if that is their prime motivation for bringing the complaint in the first place.

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

I agree that not every case will require procedural change or throw up issues of process that the hospital has to address. In my experience, that does happen, but not in every case. For precisely that reason, the Bill was amended. Clause 10(2)(i) contains a commitment to produce a report. In cases that are out of the ordinary and throw up issues that, as the hon. Member for Southport said, involve genuine human error, an apology can be made and we can make reparation. We hope that everybody will then want to move on from that unfortunate experience. Clearly, other cases will throw up questions about a whole hospital process or clinical system and we want to be sure that information about those cases is disseminated, publicly available and digested, and that changes are made. Clause 10 will enable that process to take place without imposing the unreasonable burden of requiring every complaint to be followed by an individual report.

Graham Stuart (Beverley & Holderness, Conservative)

I feel that the Minister and the Government risk missing an opportunity here, and I am sure that some Labour Members feel the same way. The Minister has explained very well the process that he feels that his constituents go through, which is reflected in his experience at his surgeries. One of the driving forces for a patient who feels he has been wronged is a desire to see change to ensure that the error does not happen again. It seems a mistake not to ensure that the patients themselves feel that they can see change in the form of a report.

One of the reasons for the Bill is that, too often, the NHS is defensive and gives the impression that it is reluctant to apologise or to accept change. This is an opportunity to make patients feel that they are creating change. If they do not feel that their complaint has been properly taken on board or they do not see a report of change, they may be more likely to go to  court once they have established the facts rather than to accept this redress scheme. There is a possibility that the Minister has missed an opportunity here.

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

I understand the reasonable points that the hon. Gentleman is making. I fully respect the argument that he just put forward. Of course it would not be right if the scheme were just a fast-track compensation scheme or an explanation scheme whereby complaints were quietly put on the shelf, everybody forgot about them and people were slightly let off the hook. We are trying to create a scheme that allows accountability and properly opens up whether there has been poor practice or whether there are defective procedures. The scheme has to be balanced. It should not be unduly administrative or bureaucratic, but should be able to deal with issues speedily and properly and then report on them. In response to amendments, the commitment was given that an annual report should be published, the purpose of which is to differentiate those cases that she is talking about from others that do not carry the same significance.

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

Although the idea of the annual report is welcome in many ways, somebody who is trying to come to terms with something that has happened to them could be waiting a long time before they gain access to that report. In order for an individual patient to move on and put an incident behind them, it could be important to have the facility to request an explanation of what happened and an action plan to prevent it happening again. So I revert to my previous question. Will the Minister consider a clause or a scheme by which an individual could ask for an action plan if they felt that it was important to them? It would not create a bureaucratic burden in every case, but it would help those patients for whom that was the prime motivation in bringing a case.

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

That is largely what happens in the health service at present. I understand what the hon. Member for Birmingham, Erdington said about the strong sense of grievance, and I always pursue cases. Most of us do that—we do not give up on the case because we were not on the receiving end of it. People who feel motivated to keep coming through the doors of our surgery obviously have unresolved issues that need to be dealt with. I fully believe that good practice in the NHS means a direct confrontation between the service and patients, often face to face, through a meeting with a senior clinical director or the chief executive so that the issues can be unlocked.

In my experience, if people are clear about what they want and what was wrong in their case, the national health service is good at responding. I am not disagreeing with the hon. Lady. I am resisting placing in the Bill a requirement to produce a report on each complaint handled by the NHS redress scheme that would lead to lessons being learned and action being taken. I do not think that that is appropriate for a scheme of this kind. As the hon. Member for Southport rightly said, many cases will arise from human error, a basic mistake or a very complicated set  of circumstances that is extremely unlikely to happen again. There would not be any merit in such a report.

Mark Fisher (Stoke-on-Trent Central, Labour)

I have been listening very carefully to what the Minister has been saying. I am waiting to hear an explanation of why he is resisting what seems to be an eminently reasonable and modest amendment. If we are here discussing redress for patients, the publication of the individual account of what has gone wrong seems to be the most modest and basic way of redress. It is not victimising people or causing an enormous fuss; it is just getting to the facts and allowing people to have the chance in the light of evidence to come to terms with what has been traumatic for them. All that I have heard from the Minister in resisting the proposal is that it will be an administrative burden and an unreasonable burden. I am not sure that that addresses the problem.

Has he any evidence from hospital authorities about the cost, either in time or finance, of the burden upon which he is putting so much emphasis? Has he any empirical evidence that it would be a great burden to produce a report on an individual case? Surely that is the least that a patient, or a family if the patient is deceased, has a right to expect. I cannot see that it would be a huge financial or administrative cost to a hospital authority to carry out such a simple act.

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

Perhaps I have not explained myself well, and I shall try to do so in response to my hon. Friend, who raises fair points. In response to the hon. Member for Romsey, I said that the Bill states that “ordinarily”—we take that to mean in almost every case—an explanation will be given to a person. As she rightly said, that is what people want. They want to know what happened and why. The explanation will essentially be a report on what happened, and the person concerned will be able to examine it and consider whether they believe it to be accurate. As the Bill says, an apology may also be made.

Amendment No. 15 would require a report

“on action being taken to reduce the risk of similar errors being repeated.”

As I tried to say to the hon. Members for Romsey and for Southport, that may not be appropriate on every occasion. A report on action being taken to prevent a repetition may not be needed in every case.

Mark Fisher (Stoke-on-Trent Central, Labour)

What are the figures?

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

I will be interested to find out the figures, which I do not have to hand, on how many of the cases in question relate to simple human error or a basic mistake such as a product being used that should not have been used. The individual who has made the error may readily say, “I made a mistake. I shouldn’t have done that.” However, there might be a complicated, unique set of circumstances. There is a difference between cases of human error and those that raise broader issues about the way in which services are provided.

Clause 10(2)(i) deals with such cases, stating that a scheme may require a trust to prepare a report for local consumption on the cases of that nature that have been referred to it and the action that has been taken to  address the problems. It is right to make a distinction between the two types of case, with which we are all familiar. There should not be a blanket requirement to produce a report on action taken, which will not always be appropriate.

Mark Fisher (Stoke-on-Trent Central, Labour)

I am sure that my hon. Friend the Minister is defeating his own case. Everybody would concede that there is a distinction between cases of human error and cases that are not human error and need to be put right for the future. He says that dealing with cases of human error through reports would be unduly bureaucratic, but surely the return on such cases will be effectively nil—just a one-line statement at the end of a report stating, “This was human error. We need to learn no lessons from it except that we are all human.” There will therefore be no administrative burden or cost at all. The Minister has defeated his own argument by identifying the fact that there will be no cost attached to making such a statement.

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

I do not think so. I shall leave others to be the judge of that. I hope that in the making of an explanation and the giving of an apology, it will be good and normal practice for a trust to say, “Following your case, these were the issues raised.” That should be part of the normal conclusion of a case under the scheme. I accept my hon. Friend’s legitimate point, and a trust should at least consider whether broader issues have arisen when finalising the terms of an explanation and an apology, should one be required.

Siôn Simon (Birmingham, Erdington, Labour)

Will the Minister give way?

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

In a moment. I will give way to everybody who wants to contribute. I agree with what my hon. Friend says, but I am resisting the notion that a report on the action being taken to prevent a problem happening again should be prepared in every case. I do not believe that such a report would properly deal with the explanation. There is no need for a report in every case. My argument is that if a person agrees to the redress that they are being offered, the trust should come back and make a broader statement about how the case is being dealt with.

I draw hon. Members’ attention to clause 10(2)(h), which places a duty on scheme members

“to charge a specified person with responsibility for overseeing the carrying out of specified functions... under this Act and advising the member about lessons to be learnt from cases involving the member that are dealt with under the scheme.”

That creates a mechanism within the trust whereby a named individual is responsible for the functions to which my hon. Friend rightly drew my attention. I argue that we have probably got the balance right here, between something that is not a paper-shuffling scheme or a box-ticking scheme. That is not the intention; the intention is to create a scheme that does what we want it to do, which is to investigate people’s complaints properly and then take the action appropriate to provide redress to the individual, and to ensure that the organisation has learned from its errors. If there is a difference between us on the issue, that is it, although I do not know whether I have convinced my hon. Friend.  

Charles Walker (Broxbourne, Conservative)

There seem to be some grey areas in the arguments being advanced. Almost all errors committed in the NHS are due to human error. After all, we control the environment in which we work. There will be catastrophic disasters, such as a plane crashing into a hospital, or a tree falling down—

Martin Salter (Reading West, Labour)

When?

Charles Walker (Broxbourne, Conservative)

I am talking “Casualty”, with all those exciting incidents—it is oil tankers in “Casualty”. However, most error is down to human error. We seem to be confusing the issues, thinking that human error will always be well-meaning error. We should not assume that if someone makes a mistake, they will apologise for it, because it was a totally understandable mistake to make. However, a lot of error will be down to idleness and incompetence. It is very important to the patient that when idleness or incompetence are identified, they receive at least the assurance that the individual or individuals responsible will be dealt with effectively.

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

I am not sure that it will always be down to idleness or incompetence, but I understand the point that the hon. Gentleman is making. I do not think that I am at odds with the majority of the Committee on the matter. I want to be sure that we are getting the scheme right. All of us must be careful about the kind of scheme that we pass over to the national health service. It is not a trivial matter, and we must all think carefully before we put in place an extra burden on anybody who works within the national health service. We have to think whether it is clearly justified, right and proper that an extra requirement is given, judging the benefits versus the cost.

I am arguing that the benefits that the hon. Member for Romsey seeks in her amendment are already addressed in the Bill. The mechanisms are there to deal with those cases: in the annual report that we have said that we would accept; in the further scrutiny of such reports by the Healthcare Commission, which we welcome; and in stipulating that a named individual within the trust will ensure that lessons are learned from cases.

Siôn Simon (Birmingham, Erdington, Labour)

We are at risk of continually hearing that if we look at best practice in the health service, this is already being done and that is already being done. But that is not really the point. There is no doubt that there is good practice in the health service and lots of good things, but we are supposed to be writing a law saying exactly how things are supposed to be done in future. We are not supposed to be leaving it to people’s good will and intentions. Many people in the health service are already doing things very well.

On the specifics of amendment No. 18, we should be clear that it does not talk about learning lessons. It is not a lessons-learning amendment. Nor does it talk, crucially, about the commissioning of a report. This is not about imposing a bureaucratic requirement on the health service, or on anybody, to commission a report. The amendment talks about providing to the claimant  the details of the report, which as part of the process will, de facto, already have been written. This is not about commissioning a new report, but about publishing details of the inquiry already undertaken. On that basis, what good reason have the Government for withholding from the claimant details of a report that has already been written? And if one has not been written, what kind of investigation has there been?

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

I disagree; I think the amendment is a lessons-learning exercise.

Siôn Simon (Birmingham, Erdington, Labour)

Amendment No. 18?

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

Amendment No. 15 is the amendment we are discussing. Our debate with the hon. Member for Romsey concerned amendment No. 15, which is very much about a lessons-learning exercise. It refers to

“action being taken to reduce the risk of similar errors being repeated.”

Siôn Simon (Birmingham, Erdington, Labour)

I was talking about amendment No. 18.

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

I accept that and shall address that amendment. My hon. Friend is right, and there are important issues in that amendment, too, but I should first like to finish dealing with the issues relating to amendment No. 15, which is very much a lessons-learning exercise. I heard the comments that hon. Members made, particularly the my hon. Friend the Member for Stoke-on-Trent, Central (Mark Fisher). He made a fair point, as did the hon. Member for Romsey.

I said that people should ordinarily know what action is being taken. Perhaps we could go further and set it out in good practice guidance that all explanations provided under the NHS redress scheme should conclude with an account of the action being taken in response, where that is relevant. It will not always be relevant because often there will be a self-contained issue. I accept the point that it may be relevant in some cases, but the giving of the explanation to me is the preparation of the report. If we take on board what the hon. Lady has said, and extend the process in that way, we may get to where she wants to be.

Nick Hurd (Ruislip - Northwood, Conservative)

The Minister’s fig leaf in this debate is clause 10(2)(i) and the annual report. To my reading that paragraph does not impose a duty; it simply says that if the Secretary of State sees fit, a scheme may require members to prepare a report. Am I to deduce from his remarks that the Government intend to firm that up and make it a duty?

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

Under clause 10(2)(i) a scheme may

“require a member of the scheme to prepare and publish an annual report about such cases and the lessons to be learnt from them.”

The provision exists. Having created the expectation, it would be right and proper that there should be a requirement on all scheme members to report in that fashion on the cases highlighted by the hon. Member  for Romsey. She was right that one problem of the current system is that cases that finally go to the NHS ombudsman are at too much of a remove. First, there is the locality in which those cases happen; the local press does not always read the reports. There is also too great a remove from the time when those cases happened. I do not know the average time, but there is ordinarily a long delay before a case is dealt with by the ombudsman.

I agree with the principle that there should be local accountability and greater speed in dealing with cases. I would go further and say that that should be a requirement on scheme members, and the Bill clearly allows that to happen.

Nick Hurd (Ruislip - Northwood, Conservative)

Have we not just heard an argument for “shall” rather than “may”?

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

As the hon. Gentleman knows, the Bill is in many ways an enabling one. Much of the detail will come forward in secondary legislation. Subsection (2) clearly lays out the expectation that he seeks. We will come to clause 10 in due course, and perhaps he will make his point again then. Given my assurances about the requirement, it is clear that we intend to operate in that way.

Graham Stuart (Beverley & Holderness, Conservative)

Even though, under a previous clause, a report should ordinarily be provided, the Minister is unhappy to allow a report to be included in this case. The Minister is suggesting that he will not amend the legislation to say even that an annual report must be provided. We are to take that provision entirely on the Minister’s assurance, without reassurance being put in the law. I hope he will accept that that is simply not good enough.

It is a problem that so much is being left to secondary legislation. On a core issue such as this, which is of great matter to Members across the Committee, we need an assurance that, if the Minister cannot accept the argument for a report to be provided in each case, at least we on the Committee, who are helping to amend the law, should know that there is a guarantee that the lessons will be put into an annual report.

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

Quite simply, we would not be bringing forward the legislation if we did not believe that these matters were important. I make no apology—none at all—for saying that we will bring forward the detail that flows from the legislation in careful consultation with stakeholders in the national health service. We will do so in a way that achieves the objectives of the scheme without placing undue burdens and distractions on bureaucracy. The hon. Gentleman would not want that, and nor would we. The expectation is clearly that an explanation will ordinarily be given in every case.

As I made clear when pressed by my hon. Friend the Member for Stoke-on-Trent, Central and the hon. Member for Romsey, I am prepared to say that we should make it clear to scheme members in good practice guidance that there should ordinarily be an explanation and, where appropriate, that action should be taken on the issues that the explanation raises. What  I resist is the idea that the explanation should be the content of a report published in each case. Our intention is clear. We are bringing forward the legislation and there is no attempt to resile from the commitments. We are bringing the legislation forward in a way that people in the NHS feel is proportionate.

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

I do not believe that it is too late for the Minister to make a manuscript amendment on this matter, particularly if we do not reach clause 10 until Thursday. He may wish to consider changing one word from “may” to “shall”.

Moving on to clause 12(2)(b), I point out to the Minister and to Committee members that there is already a requirement in the Bill to produce a report

“on any lessons to be learnt in accordance with section 10(2)(h).”

We will debate that when we come to clause 12 but I ask hon. Members from all parts of the Committee to bear it in mind while we debate clause 3.

On amendment No. 15, I believe that there is a case of principle. If a report is not written, how can we guarantee that lessons are being learned? There is something of a downside with an annual report, because the lessons to be learned could be urgent. Waiting a year might not be good enough, particularly if lessons have to be learned, in serious cases of negligence, for the benefit of patients as a whole. Will the Minister address those points?

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

I shall address them directly by saying that I will not be tabling a manuscript amendment. As I made clear, the Bill makes perfect provision for what we intend. I am prepared to say that we should clarify in guidance some of the matters that colleagues have raised, but the Bill is sound, and there is no need for a further amendment.

On the hon. Gentleman’s second point, people might not simply accept the explanation or apology. Everyone accepts that people will argue about the finance, but they might not either accept the terms of the explanation or apology. If they do not accept them, they do not sign away their rights; they can remove themselves from the process and pursue matters elsewhere. The provisions are simply an attempt to get the system to confront the case in a better way at a particular stage and do not close off the option of pursuing matters further. The Bill is therefore sound and does exactly what I described.

Diana Johnson (PPS (Rt Hon Stephen Timms, Chief Secretary), HM Treasury; Kingston upon Hull North, Labour)

I have listened carefully to what the Minister said about concerns over adding to the administrative burden on trusts, but will he comment on the requirements already placed on trusts? There is a requirement that they publish annually a risk assessment list relating to what they have done and details of the clinical governance issues that have arisen over the previous 12 months. I wonder whether that would be a way forward in dealing with this issue.

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

My hon. Friend is right on two counts. First, she draws attention to the fact that the NHS does that work and, to my mind, does it  extremely well. It seeks to provide redress in whatever way it can. The point that we are addressing, which the Bill partly seeks to address, is that that culture can sometimes be too defensive and too secretive.

Secondly, my hon. Friend is right that such matters are addressed in the requirements on trusts to put details of clinical governance in their organisation into the public domain. I therefore agree that we already have in place a system whereby such things can be done. The Bill asks whether we can do them even better still and promote a better culture in the national health service when it comes to dealing with patient complaints.

My hon. Friend is right to say that we must think carefully, and that brings me back to my earlier point. In seeking to create the arrangements before us, we must set up something that is proportionate to the aim that we seek to achieve. It would be right and proper for an individual who was not happy with the explanation or the follow-up action to pull back from the scheme and pursue redress through other avenues. However, we must create a scheme that is—light touch would be the wrong word—not over complicated and prescriptive in its requirements.

Judy Mallaber (Amber Valley, Labour)

I have been listening carefully because I am particularly concerned about a case that I have dealt with. A girl died of meningitis, and there may have been mistakes by the GP, the ambulance service and the hospitals. I have been seeking to mediate between the primary care trust, which wanted to get into a system that was not legalistic and in which it could address all the issues, and the family’s desires, but it has been quite complex to get into something that satisfies everybody. I am reasonably satisfied that the Bill will mean that such people get an explanation and that it will take account of the changes that need to be made.

Although I am tempted by the amendment, I have some anxiety that it would make each individual expect in every circumstance to be given something to show how a problem will be prevented from happening again, even if it cannot be prevented. I hope that my explanation is not too tortuous. It is not just a matter of an administrative burden. A situation could be dealt with by having clear guidance on what is expected to be contained in an explanation, without the requirement of a promise that what happened to one person will never happen again even if such a promise is unrealistic. Will it be possible to give clear guidance on what should be in an explanation?

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

I can give my hon. Friend that undertaking. We should spell out clearly the circumstances in which authorities should take action to prevent certain things from happening again. Such cases will be pretty clear to us from our own experience. I agree with my hon. Friend that to create an unrealistic expectation that everyone will get a report stating action to be taken could cause unnecessary distress or argument. If no action is taken, people might feel that it should be. There are provisions in the Bill to deal with such matters in a balanced way, and we do not  need to go a step further and make reports a requirement in every case handled in the NHS redress scheme.

We have rightly spent a lot of time on amendment No. 15, but I wish to move on to amendment No. 18, which is intended to do something slightly different: to enable the scheme to make provision about the disclosure of all findings made during the investigation of a case and any assessments of liability in tort to a patient or their representative. The Government intend that in any case under the scheme, relevant material will be disclosed to the patient or other individual eligible for redress. I hope that my hon. Friend the Member for Birmingham, Erdington, will be reassured on that point. For example, we intend that medical records, adverse incident reports, complaints files and health and safety executive investigation reports, when relevant, will be disclosed.

Siôn Simon (Birmingham, Erdington, Labour)

I thank the Minister and am reassured. Like many of the outside organisations that are following the Bill closely, I understand his desire to craft enabling legislation and not to surround the process with deadening bureaucracy. Nobody wants an over-prescriptive Bill, and if the Department wants to create enabling legislation and do much of the work through regulations afterwards, that is fine. However, the quid pro quo is that reassurance and soft undertakings on guidance and secondary legislation are needed. They would make our proceedings much more meaningful for those of us who believe that the Bill is good at heart but want to see the Government take advantage of the opportunity that they have created.

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

My hon. Friend is right to press me on that important point. We must create a scheme that will deliver openness, less secrecy and a more confident and forward-facing culture, and with such a culture comes disclosure. A case under the scheme will mirror the situation of one handled by the NHS Litigation Authority under the clinical negligence scheme for trusts. All the existing statutory rights of access to information under the Data Protection Act 1998 will apply.

In an earlier intervention, my hon. Friend rightly said that the system will not present extra bureaucracy, because an investigation report will have been prepared by a trust anyway, particularly in the most serious cases, under the NHS redress scheme. I think that he is referring to such reports with reference to full disclosure under the scheme. Amendment No. 18 would provide for such a report to be disclosed.

It is intended that the scheme may provide for investigation of cases to lead to a report, and we intend to consider further, in consultation with stakeholders, whether the investigation report should be made available to the patient or an individual who is eligible for redress, subject to any restrictions connected with patient confidentiality or data protection. That would of course be in addition to the explanation of what had gone wrong, under clause 3(2), which we spent some time discussing.

It is the Government’s intention that the scheme authority will publish guidance to scheme members about their functions under the scheme, including sharing examples of good practice, as appropriate.  That will include guidance on the matters to be covered in an explanation, to encourage the move towards a more open culture in which full and open explanations are provided as a matter of course.

I hope that I have given my hon. Friend the assurances that he wants, but I must point out that the need may arise for non-disclosure to some extent. There may be situations in which it is not appropriate for personal information to be disclosed; for example, if an application has been made to the scheme by a dependant, following the death of a relative who wanted their medical records to remain private and confidential, it may not be appropriate for all the details, which may include the medical records, to be disclosed to the surviving relative.

That becomes complicated legal territory and although I want to go with the grain of what my hon. Friend says, I hope that he will respect the fact that it would not be right to give a blanket commitment to disclose all details in investigation reports. There would be circumstances in which people would not want their details made available to third parties.

The amendment seems to envisage the disclosure even of information about the assessment of liability. Confidential communications for the purpose of obtaining legal advice and assistance may be privileged in accordance with the general rules of legal professional privilege, and we believe that it is appropriate for those general rules to apply to the NHS redress scheme.

For those reasons I oppose the amendment, but I assure the hon. Member for Romsey that we are committed to an appropriate level of disclosure under the scheme. I believe that we are going as far as we can to satisfy my hon. Friend the Member for Birmingham, Erdington and others in establishing a scheme that is based around the patient and help for the patient in moving forward, but which balances that with confidentiality and considerations of data protection.

We want to find the appropriate level of disclosure and intend to consider further, in consultation with stakeholders, whether the investigation report should be made available to the patient or individual who is eligible for redress, subject to restrictions in connection with data protection. A balance is needed between ensuring that sufficient information is disclosed to enable legal advisers accurately to assess whether an offer under the scheme is fair and reasonable, and ensuring that confidential communications remain privileged, as is appropriate in accordance with the general rules of legal professional privilege.

It should be considered that people who gave a full and frank explanation during an investigation of what went wrong and why might not want all their comments to be disclosed. In the interest of openness and honesty, we should understand that full disclosure might prevent people from coming forward with full and detailed explanations. There is a balance to be obtained in all those matters, but, as is generally true in such matters, the Government’s direction of travel has been towards freedom of information, and making information available where appropriate. That is what we intend by the NHS redress scheme. With the reassurances I have given, and our long debate on the proposals, I hope that the hon. Lady will ask leave to withdraw the amendment.

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

I am tempted to divide the Committee on amendment No. 15, as it seems to have support from several directions. I listened carefully to the Minister, who made a valid point about the proposal being unnecessary in every case, but I believe there should be provision for patients to ask for a report if necessary. Therefore, I give notice to the Minister that I shall table further amendments on Report to try to pin down the detail, get the proposal right and strike the right balance. I beg to ask leave to withdraw the amendment.

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

I beg to move amendment No. 14, in clause 3, page 3, line 22, leave out paragraph (b).

I hope that the debate on this probing amendment will not be as long as the last one. Ministers confirmed that compensation payable under the scheme will be consistent with the compensation payable if the case had been dealt with by the courts, and there is some logic in that. However, the issue is whether it is logical to put a cap on any individual head of claim because the clause could mean that some cases are undervalued or that patients feel short-changed by the scheme. The limit envisaged for the overall limit of compensation payable is £20,000.

The purpose of the amendment is to try to establish the rationale for the Government’s decision to limit compensation for pain and suffering, to discover why the figure of £20,000 was believed to be the most appropriate, and to find out how it will be reviewed.

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

I remind the Committee that clause 12 attempts to separate fact finding from fault finding and to establish an independent and rigorous investigation. On compensation, under the Bill the offer of compensation from the NHS Litigation Authority is but one avenue that patients can take at the end of the fact-finding stage. At that point other avenues are open to them; they can listen to what the NHSLA has to say, go to resolve-type schemes or to the court outside the scheme to seek appropriate compensation. That is worth bearing in mind, although I have some sympathy with the point of the hon. Lady’s amendment.

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

The scheme that the Bill creates is intended to be a fast-track, out-of-court settlement scheme for clinical negligence cases. In creating the scheme the Bill preserves some flexibility in how matters are dealt with in secondary legislation and in taking forward discussions with stakeholders. It is intended that the redress scheme will provide for financial compensation to be offered. The hon. Member for Romsey is right; the policy statement that accompanies the Bill indicates that the figure will be £20,000.

Clause 3(5) requires the scheme to specify an upper financial limit on compensation. That may be an upper limit on the total financial compensation that may be included in an offer under the scheme, or an upper limit on the financial compensation that may be included in an offer for pain and suffering—what might be termed general damages. It is our stated intention that  financial compensation offered under the scheme will be broadly equivalent to the compensation that could be provided in a successful claim in court. The Bill was amended in another place to clarify that, and the flexibility allowing for more than one cap was removed.

Further, clause 3(4)(b) gives us the power to

“make provision with respect to the assessment of the amount of any financial compensation.”

It is intended that the scheme may provide that a person seeking redress must be offered general damages for pain and suffering in line with the law on damages.

Special damages, be they loss of earnings or other costs incurred as a result of injuries sustained, must be assessed in the light of whether there is adequate proof of loss and whether they can properly be claimed as special damages in accordance with the law that governs what types of loss a claim for special damages can include. The intention is that the scheme will initially specify an upper limit of £20,000. If a case is thought to fall just above that threshold, it may be appropriate for it to be referred to the clinical negligence scheme trust and resolved outside the NHS redress scheme. The limit will be reviewed after three years with a view to considering whether it would be appropriate to alter it or to apply a limit only to the pain and suffering element. To answer the hon. Lady, we wish to keep our options open and retain flexibility within the primary legislation to take either of those options. Either way, it is intended that offers will remain equivalent to what could have been received through the courts.

This issue was raised on Second Reading and is perhaps worth revisiting. I do not believe that there is any incentive in the scheme for NHS bodies knowingly to make offers lower than what could be achieved by going through the courts, as that would simply prolong cases and provide people with incentives to take their cases through the courts. Once an offer has been made, the patient, or individual eligible for redress, will be able to have the facts checked through the legal advice available to them, so financial compensation can be checked independently. There will be no advantage in knowingly offering less, because such offers will simply be rejected. That would be counterproductive to the overall aim of the scheme, which is to get settlement in as quick, satisfactory and cost-effective a way as possible.

The amendment would remove the requirement for the scheme to impose an upper limit, and I would resist that, because it is appropriate for more complex cases to continue to go through the courts. Fundamentally, the redress scheme is designed as a fast-track, out-of-court settlement scheme for cases of low value. We will review its operation three years after implementation, but we do not consider it appropriate for complex cases to go through that route.

The hon. Member for Romsey asked how we arrived at the figure of £20,000. It was reached by examining low-value legal clinical negligence claims that were settled by the NHS Litigation Authority in 2002-03 and 2003-04—about 4,090 and 5,690 cases respectively. The cases showed that legal costs were disproportionately high for claims with a value of up to £20,000. Cases settled over that limit showed a significant reduction  proportionately in the percentage costs of legal damages. Our modelling suggests that an overall upper limit on the amount to be offered under the scheme strikes a balance between speedy resolution and an effective saving on legal costs. We believe that it is right that more complex cases should be dealt with by the courts, in which detailed legal arguments can be fully rehearsed.

Graham Stuart (Beverley & Holderness, Conservative)

The Minister said earlier that there would be no incentive for trusts to offer a lower amount than could be expected through the courts. That is a little disingenuous: this is a fast-track scheme, so there would be speed and certainty in the process whereas the courts have neither speed nor certainty. It would be rational to expect patients to accept lower amounts than they might accept in the courts. To what extent has the Minister looked at incentives, both for the trusts to put in lower offers and for patients to accept them? I do not think that one can maintain that there is no incentive to offer a lower amount when in fact it is a fast-track and certain process.

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

I understand the hon. Gentleman’s point and, in many ways, the Bill and the scheme that will come from it open up access to justice for the less articulate, the less wealthy and those who traditionally would have got fed up and abandoned the process before they could go through a case. Perhaps, indeed, those are the people who are less likely to come and speak to an MP. It is precisely for those people that this scheme is being created. It is important that there is not a reactive feel to the scheme but that the NHS takes forward schemes of its own when it realises that there may be a case of negligence. For these reasons, it is absolutely right that the scheme should be structured in this way.

The crucial point comes when people say that this has provided redress and that they have therefore signed away their ability to take it further through the legal process. At that point they should be supported with independent legal advice, and that is what we intend to give them. They will then be able to make a balanced judgement on the basis of what they are being offered, the quality of the apology, the depth of the explanation and the financial compensation, if appropriate. At that point they can decide whether they feel they have redress and whether they want to take the matter further. They then have to consider time, frustration and the problems that cases can cause. People can become very engrossed and bogged down by these cases, and one of the difficult things at the moment is that people are forced into that route to get redress, which is obviously wrong.

People will have to make a judgment but there would not be an incentive to make an offer that was of much lower monetary value and, indeed, the independent legal advice will assist individuals in coming to that judgment.

The Bill provides an element of flexibility on the issue of a cap within the scheme and whether it needs to be amended as we gain more understanding of how the scheme works in practice. It is our policy intention to have a cap of £20,000 but paragraph (b), which our amendment seeks to remove, could limit the scheme in an unfortunate way in that it may exclude individuals  who earn a great deal of money from having redress under the scheme because the damages may go over the amount of the cap that we have set. That is why we are creating the two options, so that if it were decided that many cases with which it would make sense to deal under the scheme were in fact being ruled out because of the cap on damages, that could be reviewed at the three-year point. The scheme could be extended to take in cases that would exceed the £20,000 limit, but where the damages paid in suffering were beneath that threshold. Individuals’ personal circumstances will differ, and the level at which they would require compensation for loss of earnings will differ greatly according to their particular professions.

The essence is that we want a scheme that is flexible and that can be sensibly extended at the three-year point, if the evidence suggests that there would be good reason for doing so, without our coming back to primary legislation. That is why the Bill is drafted as it is. There is nothing underhand about paragraph (b), and we are not seeking to limit compensation in any way; it simply ensures that all the cases that could sensibly fall within the ambit of the NHS redress scheme are able to do so. We continue to say that the most complex, difficult cases, where much greater sums of damages are involved, should go through the courts, so that they can be dealt with properly and in detail. With those words of explanation, I hope that the hon. Lady feels clearer about our policy intention, and I urge her to withdraw her amendment.

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

I said that this was a probing amendment to try to establish Government thinking and put it on record. I am not greatly wedded to the amendment, so I beg to ask leave to withdraw it.