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

I beg to move amendment No. 21, in clause 4, page 3, line 34, at end insert

‘provided that any individual who meets the requirement of a scheme to commence proceedings shall have the right to bring such proceedings’.

Anne Begg (Aberdeen South, Labour)

With this it will be convenient to discuss the following amendments: No. 16, in clause 4, page 3, line 40, at end add—

‘(3) A scheme must make provision for the commencement of proceedings under the scheme at the request of an individual seeking redress under the scheme’.

No. 17, in clause 4, page 3, line 40, at end add—

‘(3) Proceedings under the scheme will not be commenced without the permission of an individual who may be the recipient of redress under the scheme’.

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

Amendment No. 21 was tabled because although we hear a lot these days about a patient-centred NHS, and about the patient being able to exercise choice, it seems to me from the Bill that the Secretary of State will decide which patients are eligible to bring forward the complaints.

It is not at all clear what sort of restrictions could be put in the way of a patient who seeks to bring forward a complaint under the scheme. The amendment gives individuals the right to bring proceedings, and there are no restrictions on that. I have given some thought to who one might want to restrict, if there were a problem in the NHS, and the only situation that I could think of offhand would involve a complainer, not exactly vexatious but with a history of making complaints against the health service, and who might have another agenda. Although someone might be annoying and an irritant, and might come back again and again, there may be an occasion when that person has a genuine complaint that needs to be looked into. I find it difficult to understand how the Secretary of State will restrict who will be eligible, but that provision is clearly in the Bill, and it could be quite heavy-handed and prevent people from coming forward. In the amendment, we seek clarification on who will be allowed to bring forward a complaint, and who will not, because that is just as important.

Amendment No. 16 gives an NHS patient or their representative the right to seek redress under the scheme if they feel that they have been harmed by NHS treatment and meet the eligibility criteria of the scheme. As the Bill is drafted, the Secretary of State and the scheme authority have the right to determine who can seek redress.

It is important to have transparency. One should also consider other cases in which a patient could complain but does not want to, or changes their mind. The NHS could learn lessons from pursuing the complaint in such cases. The other parts of the scheme—fact-finding and the provision of reports to establish what has gone wrong and the measures that should be taken—are important in the greater public interest. However, there should perhaps be a right not to continue if it is in the interests of the individual. That is the thinking behind amendment No. 17. I shall leave it for the Minister to provide clarification.

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

The amendments seem to deal with the central issue of who can trigger the redress scheme. Who will say, “Yes, we need to look at what went wrong here and at the lessons that can be learned from it.”? The amendments appear to want to give that right only to the individual concerned, and I would be troubled by that, because I believe that the issue is one of public interest.

The point of the redress scheme is to give an explanation, or an apology where it is due, or perhaps compensation, which is an option that is within the auspices of the NHS Litigation Authority. Its other major aim, however, is to ensure that lessons are learned for the benefit of all, so I would be concerned about any suggestion that the scheme could be triggered only by the relevant individual.

I can envisage cases in which there would be obvious lessons that could be applied for the benefit of all patients, but in which the patient for some reason decided not to pick up and run with the scheme. Members on both sides of the Committee have said  that it is important that the lessons learned be for everyone’s benefit. In the vast majority of cases, patients with grievances have an altruistic approach whereby they want to ensure that what happened to them is not repeated, but if instigation of the redress scheme was restricted to those who had suffered grievance, there would be a risk that lessons would not be learned for the benefit of other patients in the NHS.

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

I understand the hon. Gentleman’s point, but if the hospital staff thought it was important to review a situation, they would be in a position to persuade the patient to pursue it. If a patient did not want to do that under the scheme, there would still be other ways in which the hospital could investigate and learn lessons.

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

I hear what the hon. Lady says, but the Bill clearly provides a mechanism by which valuable lessons will not be lost to the NHS. The Bill will be one of the main avenues to a change in the culture of the NHS and I am not sure that the other mechanisms to which she refers exist, or that they are as rigorous as they should be.

Members on both sides of the House want the Bill to play a major part in changing NHS culture to be more open, so that lessons may be learned, so that explanations and apologies may be given where due, and so that there is the option of compensation—we do not rule that out, as can be seen in the Bill.

The bottom line, however, is my worry that if we accepted the hon. Lady’s amendment, there could be valuable lessons that would not be learned because the only trigger given by the amendments to proceed with the redress scheme would come from the person directly involved—the person with the grievance. We all know that compensation is only part of the scheme. If people do not want it, that is fine. They do not have to have it. We know that they want an explanation and apology, and want to know that the lessons learned are not lost.

The investigation is, therefore, a matter of public interest. That is consistent with the Inquiries Act 2005. I will quote a sentence from that Act that seems to bring that point out. It is from the explanatory notes to section 2, which is entitled “No determination of liability”. It says:

“The aim of inquiries is to help to restore public confidence in systems or services by investigating the facts and making recommendations to prevent recurrence, not to establish liabilities or to punish anyone.”

That is the key point about the redress scheme. The purpose is to restore public confidence in systems or services and to ensure that we learn the lessons so that the mistakes are not repeated and, as a result, we have a better health service. If we restricted the triggering of the redress scheme to the individual concerned, we would risk relegating the importance of the scheme as an attempt to change the culture and we would not achieve our aim.

In short, in our view the issue is one of public interest and of ensuring that lessons are not lost. By restricting the triggering of the scheme to the one individual who suffered the grievance, we would risk losing the possibility of learning from those lessons.

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

I thank the hon. Gentleman for doing my job for me. Let it be a long time until he is not in a position to do so. His points are valid and he gave a good explanation. Having said that, I do not believe that the issue that the hon. Member for Romsey raised fairly—if we are talking about amendment No. 17, it is an issue of patient consent—is unimportant. It is important, as I will explain. We can assure her that we have the right balance in place.

Let me take each of the three amendments in turn. Amendment No. 16 says that the scheme must provide for proceedings under it to be commenced where the patient wishes to seek redress, and it would insert a new provision in clause 4. However, the Bill already takes powers that will enable the scheme to specify who can commence proceedings. As the explanatory notes make clear, clause 4(2)(a) enables the scheme to

“provide for a scheme member to be under a duty to start proceedings...on receipt of an application for redress”.

It is, therefore, our stated, firm intention that individuals will be able to apply to the scheme directly to ask for a case to be investigated and taken forward. The full details of who may make applications will be covered in the scheme and will therefore be part of the secondary legislation underpinning it, on which we will consult stakeholders. However, we intend for patients to be able to apply to the scheme directly. I give the hon. Member for Romsey that assurance. We will, therefore, resist the amendment because we do not believe that it is necessary, given the powers in the Bill.

Amendment No. 17 overlooks an important aim of the scheme. On that issue, the hon. Member for Billericay made some valid points. Scheme members should identify cases that potentially fall in the scheme. I do not like the word, but the scheme is meant to be proactive.

Scheme members should activate an inquiry without waiting for the patient to approach them. In our view, the expectation should be included in the scheme from the outset that people do not have to sit back and wait for complaints to be made, or we will have a reactive and complacent situation in which people wait to be prodded. We do not want that to be the case.

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

I take the point that we need a scheme in which the staff are proactive—I welcome that—but will the Minister clarify at what stage the patient will become aware that there is some sort of investigation? The patient might be unhappy, but might not have realised that there is a form of redress or might have decided to accept matters.

The patient might not want to proceed for various reasons—for example, if he or she felt that a wider body of people would know about a problem, which might be sensitive. At what stage will the patient be aware that proceedings have been instigated?

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

As the hon. Lady can see from clause 4(2)(f), we have taken powers to enable the scheme to provide for the notification of the commencement of proceedings. It is intended that if the scheme is activated by a scheme member—a primary care trust or an acute trust—rather than by the  patient, the scheme will provide that the scheme member should notify the patient of this. That is what should happen.

If the patient does not want their case to proceed under the scheme, the powers in clause 6(2)(g) enable the scheme to make provision for the termination of proceedings under the scheme. If the patient states that they do not want their case to proceed, we intend that the scheme member will be required to terminate their proceedings. If the patient wanted the case to stop, it could therefore be stopped well before it went to the scheme authority, or at any stage.

I agree with the hon. Lady on the principle that a patient’s case should not be considered by the scheme authority without that patient’s consent, or the consent of their dependants, or any other person who may be eligible under the scheme. It is right that under the redress scheme patient consent should be sought before any information covered by the common law duties of confidentiality is disclosed to the scheme authority. Common law duties of confidentiality on the disclosure of information will apply.

Where a patient refuses to give consent, it may not be possible for the case to proceed. That will be made clear to patients where the initial request to disclose information to the scheme authority is made. The duties of non-disclosure under the Data Protection Act 1998 will apply in any event. A person may not be required to disclose information to the scheme authority in relation to which they are under a duty of non-disclosure under the 1998 Act. Therefore, I agree with the hon. Lady’s principle but oppose her amendment, which is not needed to achieve the effect that patients’ cases will not proceed under the redress scheme if that is against the wishes of patients.

I want to preserve the point, which was well made by the hon. Member for Billericay, that there is a proactive approach to the scheme. It is about bringing the two things together: encouraging organisations to look at cases that might be eligible and to begin that process themselves, but at the same time having it clearly laid out that if the individual concerned does not want that case to proceed, they have the opportunity to call a halt to those proceedings.

The Bill, therefore, creates the right balance. However, the important principle of patient confidentiality and consent, which the hon. Member for Romsey has rightly drawn attention to, is properly preserved by the provisions.

Under amendment No. 21, any time limit imposed on the scheme that governs the period within which proceedings under the scheme must be started would not apply to people who might be eligible under the scheme. In other words, people who may be eligible would have the right to bring a claim under the scheme at any time in the future. I must say to the hon. Member for Romsey that I consider the amendment to be undesirable.

Clause 4(2)(c), as drafted, allows a time limit to be imposed on how long a patient can wait before applying to the scheme after becoming aware of his or her injury. It is our intention that that timing will be decided on after consultation with relevant  organisations. One issue to be discussed will be whether time limits should differ, depending on whether the scheme member initiates proceedings under the scheme or whether a patient makes a claim under the scheme.

As for an individual commencing proceedings, one option that we intend to discuss is that the time limits reflect those applying to litigated cases as laid down under the Limitation Act 1980. If that approach were taken, the claim would need to be made within three years from the date of the alleged injury or from the date on which the person first suspected that he or she had suffered injury. To provide under the Bill that there can be no time limit on applications would create several problems. The rationale for time limits is that they encourage people to proceed without unreasonable delay. Furthermore, they protect defendants from stale claims. Those interests must be balanced.

A balance has been achieved under the rules with regard to limitation periods for personal injury cases under the Limitation Act. We would all want cases to be brought forward without undue delay. If they are not, it will make investigation of the case more difficult for the NHS bodies to which the case applies. Ultimately, that would act against the interests of the patients who had been affected adversely.

On implementation, we intend to publicise the redress scheme widely. The publicity would make clear the time limit for commencing proceedings. We do not consider it appropriate to prevent time limits from being set for individuals to commence proceedings under the scheme. There is further discussion to be had with stakeholders about precisely how those limits are set and when the clock starts. In general, the three-year time bar works well and will strike a fair balance between people having good time to come forward with their complaint. It provides for the statutory sector—the NHS—to know that, if a case has not come forward, it will not have to prepare for cases continually coming forward that were dealt with long ago and have to be involved with extra work, such as retrieving files that were quite old and outdated.

A balance must be struck. It would be right to go with the three-year test. However, we shall take matters further in consultation and general discussion with those who have an interest in such issues. It is right that the principle of a time limit should be included in the Bill. With those words, I have not offered great reassurance to the hon. Lady, but many of the provisions that she seeks, especially through the other two amendments, will be taken care of under the Bill. As drafted, it meets many of the worries that she has expressed. I ask her to withdraw the amendment.

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

I am much reassured by the Minister’s sentiments and the thinking behind the Bill, which is right. The only problem is that we always take a lot on trust when we have something that could be open to wide interpretation under the Bill. Having given the matter some thought, I do not believe that a future Government of any shape or colour would want to do anything other than what the hon. Gentleman has described. With that, I beg to ask leave to withdraw the amendment.

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

I beg to move amendment No. 13, in clause 4, page 3, line 35, leave out ‘may' and insert ‘shall'.

The Committee will be pleased to know that I shall be brief. The Minister talked about time scales when he referred to the previous batch of amendments. This amendment is an old favourite of Committees: it would leave out “may” and insert “shall”. It occurred to us that there is a need to ensure that if a complaint is in hand, it is being dealt with at a reasonable rate, and that there are no excuses for a trust to delay coming to a conclusion. It would be helpful for the scheme to have clear rules about when proceedings should start, how long they should take and how long it is reasonable to ask somebody to wait. I know from a constituency casework point of view that there are occasions when feet are dragged in the hope that people will just go away and forget about their case. Some people may not hear anything and will not push. The amendment would ensure that there is a sharp focus on any complaints, and that matters are dealt with as speedily as possible. That is the gist of the argument.

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

Clause 4(2)(d) enables the scheme to set out circumstances in which proceedings under the scheme may not be started. For example, it is envisaged that proceedings under the scheme may not be started in respect of a case that has been previously considered under the scheme, or where an offer in respect of the same injury has previously been rejected. The intention of paragraph (d) is to avoid cases that have already been investigated and found to be outside the scope of the scheme having to be investigated again. I do not think that the hon. Lady has any objection to that basic principle. She is perhaps seeking some sharpening up of the wording. Where a patient has already rejected an offer of redress under the scheme in respect of the same injury, we intend that the scheme will provide that proceedings cannot be commenced. The intention is to avoid the scheme member having to start the process again and investigate the same case. The Bill currently gives us what we need in making clear that that can happen, so the changing of a “may” to a “shall” is not necessary. It is possible that it would give greater certainty to circumstances in which a case could not be commenced, but I do not think that the Bill’s drafting is fundamentally wrong. The clause enables those circumstances envisaged to be laid out clearly.

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

The sort of example where I thought it would be useful to have a clear indication of time scale is in the investigation. It is easy to make excuses that people are on holiday or study leave, and to say that it is difficult to get to the basis of the facts. The investigation is important because it underpins the rest of the proceedings. What is the problem with setting a time scale? What is the problem with the word “shall”? I do not understand the objections to it. We understand the need for matters to be resolved quickly, so I should like to be clear about why that word is rejected.

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

I am happy to speak further with the hon. Lady about the matter. If I understand her  correctly, she wants to create a situation in which the individual can suspend the commencement of proceedings. However, the amendment would not materially change the Bill. The Bill simply enables us to lay out the circumstances in which an application under the scheme may not be commenced. I studied English, not law, at university, but I do not think that there would be any substantive change to the meaning of the Bill if the “may” in paragraph (d) changed to “shall”. The Secretary of State would still be able to lay out in regulations what kinds of cases would be disqualified under the scheme because they had already been considered and dealt with.

There is no material change. If the hon. Lady has a different interpretation of the paragraph, I shall be happy to give way to her again. However, I am confident that the Bill does what we want it to do. No aspect is weakened in any way. In due course, we shall bring forward clearly the circumstances in which proceedings cannot be commenced for of the reasons I have set out. I hope that I have reassured the hon. Lady and I ask her to withdraw her amendment.

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

I shall indeed seek leave to withdraw the amendment, because I realise that there was a drafting error on my part; I identified the wrong “may”  and “shall”, so I would be talking about something completely different. I originally intended to change line 28, but we can return to that another time. I apologise to the Committee and the Minister.

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

If such an amendment to line 28 came forward on Report, that would not make legal sense either. It is a long time since I practised law, but I do not think that there could be a “shall” for a provision in respect of ministerial discretion; that would convert clause 4(1) into a duty.

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

I am not a lawyer, and I bow to the hon. Gentleman’s greater knowledge. My main motivation is to try to make things better for the patient, but I welcome the hon. Gentleman’s clarification. I beg to ask leave to withdraw the amendment.