Clause 6
NHS Redress Bill [Lords]
4:00 pm
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
I beg to move amendment No. 1, in clause 6, page 4, line 13, leave out from ‘scheme' to end of line 15.
Anne Begg (Aberdeen South, Labour)
With this it will be convenient to discuss the following: amendment No. 8, in clause 6, page 4, line 15, leave out ‘tort' and insert
‘law, whether civil or criminal'.
Government amendment No. 2
Amendment No. 19, in clause 6, page 4, line 23, at end insert—
‘(h) for independent assessment of the eligibility ofcases for redress under the scheme in specified circumstances'.
Government amendment No. 5
Clause 12 stand part.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
It is somewhat fresher than it was this morning, but perhaps our discussion will generate some heat because we have hit the part of the Bill that relates to the substance of the disagreement on Second Reading. We have genuine differences over the way in which the scheme should be structured and the type of scheme that we are trying to create.
My amendments restore powers to enable a redress scheme to be established with the structure originally intended by the Government and reverse amendments made in the other place. Clauses 6 and 11, as amended there, would separate the fact-finding investigation under the redress scheme from the assessment of liability and quantum. The scheme authority would have no role in the investigation and provide no guidance or advice to scheme members about investigations. The opportunity to have a unified scheme would be lost.
Amendment No. 8, which was tabled by the hon. Member for Billericay (Mr. Baron), is even more clearly intended to confine investigation under the redress scheme to a fact-finding investigation, preventing consideration of issues of liability in law, both civil and criminal, rather than issues of tort alone. The amendment is in keeping with the amendments made in another place and entrenches the separation, rigidly splitting the scheme.
The main matter before us is clause 12, and I draw the Committee’s attention to amendment No. 6, which would delete it. It is important to spend some time on that to understand why the Government seek to remove the clause and restore the scheme to its original envisaged structure.
Clause 12 requires the Secretary of State to make provision for the appointment of patient redress investigators and for the Healthcare Commission to maintain a list of investigators and oversee them. The amendments made in the other place seem to intend that a panel of patient redress investigators should be created, but that is not specifically laid out in the clause. Indeed, it does not answer many other questions, and I urge the hon. Gentleman to give us some of the detail of the scheme envisaged. How many patient redress investigators do the Opposition have in mind? Who will they be? How will they go about investigating the facts? Who will pay their wages? Those are serious questions, and those who advocate the structure in clause 12 need to put the detailsbefore us.
There are several serious problems with the clause, not least that it adds an additional layer of bureaucracy and works against a primary aim of the Bill, which is to encourage and facilitate local learning.
John Baron (Shadow Minister, Health; Billericay, Conservative)
Let us start our debate by discussing the Government’s line that we are adding to bureaucracy. Nothing could be further from the truth. We are accepting the structures that are in place. All we are doing is trying to simplify process by separating fact finding from fault finding. That is not adding to bureaucracy. The bureaucracy would have to exist anyway under the scheme as the Government would like it to be. All we are saying is that there should be an independent person at the top to guarantee its independence. That is not adding to bureaucracy.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
I hope that the hon. Gentleman will develop that train of thought, because I do not believe it possible to say that the proposal will not increase bureaucracy. We have in mind a single, unified scheme whereby the NHS can provide a fast-track settlement system out of court, so that redress can be provided to individuals who seek it for harm done in the course of their health care.
Clause 12 and the related amendments seek to create a split in that scheme, in that an army of investigators would be accountable to the Healthcare Commission, and, separately, the NHS Litigation Authority would examine the findings of their work and be responsible for them. Will the hon. Gentleman tell me in clear terms how those proposals do not add a layer and a brake in the scheme? I would be grateful if he explained. As far as I can see, they clearly do.
John Baron (Shadow Minister, Health; Billericay, Conservative)
The Minister must accept that his scheme, as envisaged, is a two-stage scheme anyway. According to the Secretary of State on Second Reading, the trust will first investigate the facts, then pass the case to the NHS Litigation Authority for assessment of liability. Even within the Government’s scheme, there is a two-stage process.
All we are saying is that we want a one-stage process. We want the fact-finding stage only, to ensure that lessons learned are not lost in the system and the national health service. Fault finding can be determined by the NHS Litigation Authority—that option exists—or the patient can go elsewhere to a resolve-type scheme and so on. The bottom line is that the Government scheme, as presently constituted, involves a two-stage process anyway, as confirmed by the Secretary of State on Second Reading.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
I do not disagree with that point. The hon. Gentleman and his colleagues have made great play of the point about separating fact finding from fault finding. The scheme, as envisaged, has a separation between those two functions, in that an investigation will be carried out at local level by the organisation concerned, which would be followed by decisions on liability, taken by the scheme authority, and subsequently on quantum, if relevant, on the basis of the facts of the investigation. There is some separation of functions, but within the structure of a unified, single scheme.
Let us be clear that a significant number of investigators would be required if they were to be able to investigate the volume of complaints made. Last week, I answered a parliamentary question from the hon. Member for Hornsey and Wood Green (Lynne Featherstone), and the number of complaints handled every year by trusts was detailed trust by trust. The volume is huge, and the data will be provided to Committee members for reference. We would be talking about an enormous volume of work, should that be passed to an independent body of investigators.
The hon. Gentleman proposes that the investigators should be accountable for their work and overseen by the Healthcare Commission. That is separation between their function and the assessment of liability and quantum by the NHS Litigation Authority.
John Baron (Shadow Minister, Health; Billericay, Conservative)
The Minister talks about a massive increase in the number of investigators, but fails to recognise that the apparatus, structure and administration are already in place. All we suggest is that at the top we have one person, an NHS redress investigator, who is truly independent and oversees the fact-finding stage. In other words, we are simplifying the process. I do not think it can be claimed that we are adding to bureaucracy or cost because, in essence, we are changing one person at the top to ensure the independence of the investigation. I think that the Government have misunderstood our proposals.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
Maybe, and it is for the hon. Gentleman to convince me that we have not. Clause 12, which we did not want, talks not about a single investigator who is responsible for the scheme but about investigators:
“The Secretary of State shall by order make provision for the appointment of suitably qualified patient redress investigators who shall have conduct of the investigation of the facts of cases in accordance with section 6(2)(a).”
I take that to mean that those people will be permanently employed in that role. If they are to be independent, is the hon. Gentleman saying that they cannot be employees of the organisation of which they are investigating a complaint? He has not risen to correct me, but clearly if he is saying that investigators have to be independent, it follows that they would not be employed by the organisation. That will give rise to all kinds of cost and bureaucracy.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
The hon. Gentleman asks why, but his hon. Friend the Member for Billericay said the investigations are already being done and that things are already in place. It is not so. There is not an independent patient redress investigator assigned to each trust or region of the country; they do not exist. The function to be created under clause 12 will add cost. On Second Reading either the hon. Member for Beverley and Holderness (Mr. Stuart) or one of his hon. Friends talked about suitably medically qualified patient redress investigators. If he could explain how and where that is replicated in the current system, I would be interested. Comparisons were drawn with the coroner system, no less. The Opposition are not proposing something that replicates, reassigns or repackages what happens at a local level but an extremely different scheme. I would be interested to know how the hon. Member for Billericay feels that I am wrong in drawing that conclusion.
John Baron (Shadow Minister, Health; Billericay, Conservative)
The Minister raised two issues. The first was about clause 12(1) and its mention of “investigators”. Obviously, we cannot have just one investigator in the whole country to determine such issues. A number of investigators around the country will fulfil the role, but it will result in only one investigator per scheme. That brings me to the Minister’s point about cost. We must not forget that the cost is not additional but inevitable, since there has to be an investigation whether it is carried out by the NHS Litigation Authority, the trust or independent investigators. The cost is established, but the question is who sits at the top and who oversees the fact-finding stage. We suggest that NHS redress investigators are at the top, independently chosen and independent by nature, to ensure that the scheme is given independence.
The structure exists anyway, and the redress scheme has an inevitable cost. There has to be an investigation, and it is merely a question of who sits at the top.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
The hon. Gentleman is merely confirming that neither he nor his Friends in another place have thought the scheme through. The terms of clause 12 suggest that all cases would be investigated by a patient redress investigator who lays out clearly that they shall have conduct of the investigation of fact in accordance with clause 12 (2)(a), which says that a patient redress investigator shall
“conduct the investigation of the facts of a case in accordance with the rules of natural justice; and... produce a report on the principal findings of the investigation.”
I cannot understand how one or two investigators in a region could do that for every case. The hon. Gentleman also said the proposal was not additional, but it clearly is. He just said that these people would be put in place in a particular region to carry out a particular contract.
The major objection is not to the cost. The proposal envisages a very different scheme from the one we have in mind. It would replicate in the NHS redress scheme the style of investigation carried out under the legal process, but the whole point of the scheme is to create a breathing space; a period in which the NHS can face up to its failings and make appropriate redress. The hon. Gentleman’s proposal would create a substantially different scheme that does the same job that would now follow from the legal process.
Siôn Simon (Birmingham, Erdington, Labour)
I do not know what point my hon. Friend has reached in his remarks and how much else he will go on to say, but it is worth making the point that he has chosen to focus on clause 12 as the substance of the issue. Lots of outside organisations have taken an interest. It does not seem to me that clause 12, or the Tory scheme, is the substance of the issue at all. The Tory scheme seems at best to be a distraction, and probably most realistically a rather opportunistic and ultimately irrelevant separate scheme for the sake of having a separate scheme.
The substance of the issue is how we can best amend a very good Bill, going with the grain of some very progressive developments, by introducing an element of independence. Unlike the Tories, I do not mean a whole army of investigators. I mean some sort of jointly instructed medical expert who is independent. I will come on to that should I catch your eye later,Miss Begg. Opposition Members may mean all kinds of things by independent schemes but I do not think very many people take this seriously and I urge the Minister to not get too bothered about it.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
My comments on clause 12 should not give the impression to my hon. Friend and others that I am in some way dismissing the principle of some independence within the scheme. I am certainly not doing that. I would be happy to continue to have a dialogue with him and others as to how investigation of the facts could be done in such a way that people can have confidence and trust in it. That will define the success or otherwise of the scheme. If people feel that it has been done fairly, fully and impartially, they will more likely accept the conclusion. I am grateful to him for making that distinction and would be willing to talk to him about how one can combine more impartiality or more confidence-building into the scheme. I will come to that later, and in clause 8 we will touch on independent legal advice that would be available to patients.
My hon. Friend mentioned jointly instructing experts. That is something that we will come on to in discussing the scheme and which could give confidence to an individual patient. I am happy to work with him on these matters, and he is right to dismiss the army of investigators for the nonsense that it is.
Graham Stuart (Beverley and Holderness, Conservative)
The Minister has said to his. hon. Friend the Member for Birmingham, Erdington (Mr. Simon) that he is prepared to discuss the idea of independence being injected into the system. Notwithstanding the regrettable tone with which the hon. Gentleman commented on our proposals, there is nothing in the idea of patient redress investigators that requires them to be full-time investigators.
If we want independence injected into the system, there is nothing to stop investigators who currently conduct investigations from being independent, as the Minister said, which is odd, considering what he told the hon. Gentleman. If we want independence, the investigators should not be employed by the organisation. One simple improvement to the Bill would be for the people who currently investigate not to do so for the organisation by which they are employed. Independence would be put in place, at no great expense.
Calling the investigators patient redress investigators would help reinforce that point and be an entirely constructive move. It could not be less opportunistic if it tried. I hope that we can take a more cross-party approach to injecting proper values into the debate.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
It is important to be clear about what is meant by clause 12. I do not disagree that it is important to have an element of independence, but I am not giving something new. The scheme that we propose binds in elements of independence all the way through. Free independent legal advice will be provided to patients at the point at which a decision is made about whether to accept the offer of redress under the scheme. That is independence and, as I said to my hon. Friend the Member for Birmingham, Erdington, provision has been made for the scheme member, jointly with the patient, to instruct an independent expert. There is independence in the scheme.
Perhaps I read clause 12 differently from other hon. Members, but it says that a patient redress investigator will conduct an investigation in every case. We have in mind a different scheme. The scheme that we envisage is not one in which there is an adversarial atmosphere or a climate of fear or suspicion of an investigator coming in to conduct an investigation and put people on their mettle. The purpose of the scheme is for the NHS to face up at an early stage to something that has gone wrong, to encourage staff to be open and up front about it, and to enable them to come forward about what has gone wrong.
The point is for the NHS to take ownership of the issue, for the patient and the NHS thereby to have a more positive experience, and for a learning culture to be promoted in that organisation, rather than for the investigator just to arrive and begin his investigation. As hon. Members know, from other aspects of public service, that does not necessarily produce the right spirit or culture within an organisation, in that it tends to make people turn inward and become concerned, rather than making them feel that the environment is supportive and that they are going to get to facts in a way that neither points fingers nor apportions blame.
Charles Walker (Broxbourne, Conservative)
Will the Minister clarify who, in his vision for the Bill, will investigate a complaint and how that will differ from what currently happens? Will a different person conduct an investigation or will the same person who conducts one now do so, albeit under a slightly different guise? I am slightly confused and would be grateful if the Minister clarified that point.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
The hon. Gentleman is right to say that NHS trusts are carrying out that work at present. Clause 10(2)(h) requires
“a member of the scheme to charge a specified person with responsibility for overseeing the carrying out of specified functions conferred on the member 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 says clearly that one individual in a trust will be given responsibility for overseeing and carrying out the specified functions under the scheme. The scheme authority would use staff already in place to do that work, at trust level and at the level of the NHS Litigation Authority.
Charles Walker (Broxbourne, Conservative)
In essence, therefore, it formalises what already happens. It does not seem to be a big shift from what happens now. If so, why should patients have any more confidence in the system than they have now? I know that some Labour Members share my concern.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
That is a fair question. As I said to my hon. Friend the Member for Birmingham, Erdington, it will create a different space in which we hope such matters can be resolved to everybody’s satisfaction. The hon. Gentleman will have had constituency cases, as have I—they can be confusing—when constituents come to us with complaints. There can be a slight stand-off if it is not clear whether the patient is considering taking legal action. If a person has commented that he will take his case to the lawyers, a difficult period can follow during which the trust is not clear exactly how the complaint will go forward.
Some of the deficiencies of the current system mean that people feel that they have no option but to take legal action. They believe that the system does not seem to be listening to them; they want the machine—the system—to hear what they are saying; and, my goodness, we all know that from time to time the machine does not hear what they are saying because we hear of cases that make us all concerned. Because they do not feel that they get proper engagement, people believe that their only option is to go down the legal route, and the whole point of the Bill is to try to create a different culture when handling such matters. That is the nub of the matter.
The Bill will create a local space to help people who have been involved in an adverse incident; it will allow an open process whereby the facts can be put on the table and a learning experience can happen within the trust. That will allow people to find out what went wrong and why, rather than immediately retreating against the threat of legal action, with staff thinking about recovering positions and about protecting themselves from action. That is absolutely the purpose of the Bill.
My hon. Friend the Member for Crawley (Laura Moffatt) made an important speech on Second Reading, when she spoke about the effect on nursing and clinical teams when such incidents take place. Although we talk endlessly about patients—it is a patient-focused scheme—we must have regard for the effect on NHS staff involved in such cases. It is not necessarily in their interests, or in the patients’ interests, that a long legal process should ensue as we attempt to find out the facts of the case. That is the nub of the matter.
Nick Hurd (Ruislip - Northwood, Conservative)
The Minister is indeed addressing the nub of the matter. Following the line of questioning introduced by my hon. Friend the Member for Broxbourne (Mr. Walker) if the right to pursue the matter in court is not being taken away, and if what the Government propose is a process of fact finding that is basically the same as it is today, what is it that will transform the culture of “never say sorry” mentioned by the hon. Member for Crawley on Second Reading? What is the catalyst for change within NHS staff?
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
It will happen because the scheme formalises that process of investigation, explanation and apology—it is in the Bill, in primary legislation. That separates out the confusion, referred to by my hon. Friend the Member for Crawley, about what we could say if there were a legal problem and we said sorry about something. The amendment would make the scheme very different.
As I see it, the scheme creates and carves out a breathing space in which that process can happen. The hon. Member for Ruislip-Northwood (Mr. Hurd) and other Conservative Members seem to have a pessimistic view of the scheme and believe that the NHS will not be capable of coming to a fair conclusion. In my view, underlying the amendment are a basic lack of trust and a pessimism about the ability of the system, on the back of the scheme, to come forward with a fair and impartial judgment and then an apology and explanation. However, we are doing something different—creating a climate in which NHS staff can feel that they are operating in a different culture.
That is the important point. I hope that I am not an eternal optimist; I do not believe that I am.
John Baron (Shadow Minister, Health; Billericay, Conservative)
The Minister is absolutely right in the sense that this issue is the nub of the problem and of what should be discussed. However, there would be more chance of an open, transparent, independent process if the adversarial aspect were taken out. That is what we propose. We are saying that the fact finding must be separated from the fault finding and that the investigation should simply find the facts.
The Government intend to bring into the scheme the concept of determining liability and awarding compensation. However, that would not make for an open, transparent investigation because part of the process would involve determining liability. If we took that out and simplified the process, we would be more likely to have an open and transparent investigation and, as my hon. Friend the Member for Broxbourne (Mr. Walker) pointed out, a better chance of transforming or changing the culture in the NHS so that it was open and addressed the issues at hand.
We are more likely to achieve that if we take the issue of determining liability out of the equation. People tend to close and clamp up a little as soon as lawyers are involved and there is the threat of litigation and determining liability.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
We have a genuine disagreement. In my view, the scheme as we envisage it takes the adversarial element out; the creation of the patient redress investigators would reintroduce it in an unhelpful way that would not be conducive to the open and constructive resolution of complaints.
It is absolutely crucial that the process of redress under the scheme should be integrated with the other functions that scheme members will continue to have, such as that of handling complaints, risk management procedures and clinical governance, to which my hon. Friend the Member for Kingston upon Hull, North (Ms Johnson) rightly drew attention this morning.
The work will complement all the other work that the trust, with the National Patient Safety Agency, has under way to improve patient safety. The provisions sit properly at that level. The hon. Gentleman’s scheme would introduce the adversarial element that we seek to remove.
John Baron (Shadow Minister, Health; Billericay, Conservative)
This point of difference between us about how best to ensure openness is so fundamental that it is important to dwell on it for a second. Appointing an independent redress investigator would replace a role that would have been taken by somebody within the system anyway, so there would be no question of cost arising. The cost of the investigation is fixed and inevitable; the only issue is about who carries out the investigation. All we suggest is that it should be an independent redress investigator.
Surely the Minister accepts that if lawyers are involved in determining liability in a redress scheme, and the NHS Litigation Authority is also deciding on issues of compensation, it is far less likely that there will be an open, transparent investigation than if it is confined simply to fact finding, very much along the lines of the Inquiries Act 2005. The scrutiny of that legislation has been well documented. I am conscious that this is an intervention, but I shall just quote the explanatory notes to the Act, which state that
“inquiries under this Act have no power to determine civil or criminal liability and must not purport to do so.”
However, they are empowered to investigate the facts. That is not adversarial, and therefore investigations are more open and transparent.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
I am afraid that we will simply have to disagree on this. I could give the hon. Gentleman examples of trusts that have effective ways of integrating complaints and claims handling, infection control and patient safety—issues that are properly dealt with at local trust level. I shall disagree with him on this possibly until we have dealt with this Bill. I do not believe that we can do anything other than createa culture of defensiveness—the hon. Member for Beverley and Holderness also mentioned this—if somebody from outside the organisation comes in to carry out “an investigation”. I do not for the life of me understand how that can create a situation in which people feel that the organisation is opening up to mistakes and failings, taking ownership of them and wanting to make proper redress.
Judy Mallaber (Amber Valley, Labour)
Givenclause 12(2), I cannot understand how the system will work in such a way that the facts are totally distinguished from liability. As one reads it, a report will be produced that will include
“any lessons to be learnt in accordance with section 10(2)(h)”,
which will provide the basis for considering any assessment of liability in tort. I do not see how those elements can be divided in the way set out in the clause. I would like to ask the hon. Member for Billericay exactly what counts as a suitably qualified patient redress investigator. Is it a lawyer or a medically qualified person?
I return to the question of what would make the scheme work. In the tragic case to which I referred this morning of my constituents whose daughter died of meningitis, they immediately went to the papers asking for an inquiry. They did not realise that there was a possibility of having something independent. I have a primary care trust that was desperate to carry out an inquiry to get to the bottom of what happened, because it was critical to do so. We have just had another case of meningitis in the same school, and people have died of it in my constituency, so it is a big issue. The PCT was desperate to investigate and the family were desperate to have an inquiry but they did not know that there was a process for that, and there was a danger of their taking the legal route.
When both sides want the same thing, it is important to give them reassurance and to know that the independent assistance that they could have would help them to set out the facts of their concerns. That is provided for in the Bill. As I understand it, the legal advice provided for in the Bill is about establishing whether any offers that are made are reasonable. Obviously people would want to know that in order to decide whether to adopt their other rights of using the legal process to get a better result, but in this tragic case it would have helped if my constituents had knownthat it was possible to have an inquiry to the benefitof all concerned without immediately getting into defensiveness.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
My hon. Friend is absolutely right to make that point. The whole purpose of the scheme that we have in mind is to provide resolutions quickly and for the nature of the problem to be quickly understood. Regardless of the issue of independence versus local people taking ownership, a quality investigation is far more likely to be done quickly by people who understand, or were involved in, the case, because they will clearly understand the facts and will be able to establish them quickly.
I do not accept for a moment that it will simply be a case of handing the facts down to patients and saying, “Accept them.” As I said at our previous sitting, I often find that patients who go through the current process enter into a dialogue with the trust. The letter will come back, and they will say, “Oh, no, that didn’t happen. I went to ward X, not ward Y. I was waiting there. This is what they said to my husband.” They go through a process of challenging the facts, and I see no reason why the same will not happen under the scheme before us—indeed, I am sure that it will. As my hon. Friend rightly said, those who do not have confidence in the facts at the end of the process—this comes back to the trust point that I made in response to my hon. Friend the Member for Birmingham, Erdington—will seek another route by which to gain redress.
One thing we must not lose sight of is that the scheme is about giving those who are, let us say, less articulate, less wealthy and less likely to go to an MP access to the justice that they do not currently get—that is the crux of the scheme. The hon. Member for Beverley and Holderness asked what was new in the scheme. What is new is that it puts a duty on scheme members to take an active approach to identifying cases that might be eligible, triggering investigations into them and making redress where appropriate. The hon. Member for Romsey (Sandra Gidley) was right to ask whether patient consent should not play an important part, and of course it should, but what is new and different about the scheme is the duty that I described. That is what we think makes it extremely attractive for patients and the NHS.
Graham Stuart (Beverley and Holderness, Conservative)
Would the Minister take us carefully through how the investigation under the Government’s proposals would differ from that under the Opposition’s proposals? He suggests that the investigation would be more expensive, bureaucratic and adversarial under our proposals. We have dealt with the adversarial point, but would the investigation be more expensive because an independent investigator would be more thorough? Would it be more expensive, fundamentally, because somebody independent came in, as opposed to someone inside? I am unclear why the Minister believes that, fundamentally, it would be a more expensive process. If the investigation were of the same thoroughness, regardless of who carried it out, exactly the same quantum of work would be involved, as my hon. Friend the Member for Billericay said. The person establishing the facts would simply be independent.
The Minister said that his scheme—he makes this sound like a strength of his argument, but it is the opposite—would help those who are less articulate and who might be put off by a legal process. He also said that things would happen more quickly if the investigation were carried out by people involved in the case. He has said on the record, therefore, that people involved in the case might do the investigation and then present the facts as they saw them to somebody who was not articulate and who had nobody else to help them establish the facts because no independence was involved in establishing them. How can that be an improvement? Would the Minister explain?
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
I shall begin with the hon. Gentleman’s last remark and perhaps clarify it. Perhaps I gave a misleading impression, but I am not saying that the individual who led the procedure should be asked to inquire into what went wrong. I am saying that it makes sense for somebody in the trust who has a working relationship with that person to talk to them and to get to the bottom of what went wrong. It is much better for a colleague who works in the trust, whom the person knows and with whom he or she has had a long working relationship, to establish the facts of the case than it is for some unknown person to arrive and be the investigator. I am not saying that the individual who led the procedure should be the judge and jury and say, “This is it, like it or not,” because there would be a conflict of interest. I did not say that.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
Okay. I am happy to have the chance to clarify the matter. It is important that those who know and work with people can work with them to get to the facts.
Laura Moffatt (PPS (Rt Hon Alan Johnson, Secretary of State), Department for Education and Skills; Crawley, Labour)
Does my hon. Friend the Minister agree that while, initially, it seems attractive to have a second team that is able to do the investigation, that would not address what the Bill is attempting to do, namely change the culture within the NHS so that it can grow up and understand that things go wrong and people want proper redress, quickly? If we go back to business as usual, and a team comes in to do investigations, we will be back to square one and will not have tackled the basic problem of responsibility.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
My hon. Friend speaks far more authoritatively on these matters than ever I could. I agree entirely that the scheme is an attempt to change the way in which things are done. In direct response to the hon. Member for Beverley and Holderness, I would argue that if we are to achieve that which all members of the Committee profess to want—more learning and more openness at local level—it is vital that scheme members play a fundamental role in identifying and investigating possible mistakes. The two are indivisible. The point about the hon. Gentleman’s scheme is that we can still have the other scheme, the independent process that ends in the courts; nobody signs away his right to that process should he not get redress under this scheme.
Charles Walker (Broxbourne, Conservative)
The Minister makes a good point. Let us focus for a second on the patient, who is very upset. He has just lost somebody, or something has gone badly wrong. Who will advise him on the processes and opportunities open to him to bring a complaint? How will the trust conduct the process, and who will be responsible for making the first contact with the patient?
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
The hon. Gentleman raises a good point. As I just said to his hon. Friend the Member for Beverley and Holderness, the Bill creates a new duty to get the process under way without waiting for a complaint to be made. That is part of the new culture, to which my hon. Friend the Member for Crawley rightly draws attention. It is not a case of getting away with it if nothing comes in, and hoping that a complaint is not made. The point is that the system will trigger an investigation when it is known that things have not been satisfactory. It will require patient consent for a matter to go fully through the redress process, but this is an attempt to create a different system.
I make no apology whatsoever for saying that this scheme will help those who do not feel inclined to take legal action or to go to their MPs but who, nevertheless, feel that they have been on the receiving end of poor care and are deeply dissatisfied about their experience. One of the main justifications for a scheme of this kind is that it broadens the access to justice of people in that position.
John Baron (Shadow Minister, Health; Billericay, Conservative)
The Minister said that one aspect of independence is that patients will still have a right to go to court if they are not happy. Is not the point of the redress scheme to provide an alternative to going to court? It would be absurd if the key to the success or fairness of the alternative were a right to appeal to the original.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
Earlier today, the hon. Gentleman said—I agreed with him—that most people will come forward because they do not want the thing that happened to them to happen to somebody else. Let me put it to him that procedures and practices are more likely to be changed if an organisation has carried out its own investigation into what went wrong. I would argue that our route is more likely to achieve the principal aim of the scheme, on which he and I agree, than is the system that he envisages.
John Baron (Shadow Minister, Health; Billericay, Conservative)
I take the Minister’s point about the need for change in the NHS. We agree on that. However, we are saying that there is a better chance of encouraging change if we take out the adversarial aspect of the investigation and leave it to the fact-finding stage.
Returning to credibility, I think that the Minister underestimates the importance of independence to credibility. Lessons must be learned, but the most important thing is that patients place credibility on the scheme. If we allow an organisation to investigate its own affairs, there is the risk that patients cannot be sure that it is fair. That would hurt the credibility of the scheme.
Will the Minister accept that if we want credibility, if we want the scheme to work and the nature and culture of the NHS to change, above all else it must have the credibility of independence, otherwise many other questions fall from it?
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
I do not take that point. On Second Reading, the hon. Gentleman and his colleagues talked about a system along the lines of the coroner system for the patient redress role. I think that they envisage a fundamentally different scheme. Effectively, he is asking us to endorse the principle that we have the adversarial scheme currently provided under the legal system, but at an earlier stage, under an organised NHS scheme. So I think that he is asking us to embrace something different, and to endorse an adversarial investigation as part of the NHS redress scheme.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
No, let me answer in full.
That would create defensiveness, and would not aid the full establishment of the facts. The independence comes when people are offered legal advice at the end of the redress process. Only they will know whether they feel that the explanation given to them, as required by the legislation, meets with the experience that they suffered. If it does not, they can carry on with the process, and seek redress via the legal route. If they are able to, they will qualify for legal aid to do so.
Siôn Simon (Birmingham, Erdington, Labour)
I shall make my point again because Opposition Members are in effect repeating their same point—I am conscious that the Minister keeps hearing it and is obliged to keep replying to it.
Under the Bill and the proposed scheme, it will be perfectly possible to introduce an element of constructive independence into the system. When those of us who would have supported amendment No. 19, which we are discussing in this group, and who disagree profoundly with clause 12, talk about independence, we mean within the context of the scheme proposed in the Bill, in which the NHS will investigate itself. However, at a certain point in that process, if certain ideal situations are not reached, some element of independent arbitration, presumably commissioned jointly by both parties, would be the most constructive way forward. When we talk about independence, we are talking about writing that possibility more strongly into the Bill, as amended in the other place, in order to make such independence a right for people who reach that stage in the proposed scheme, within the NHS culture, as explained by the Minister.
I do not want the Minister to get the impression that Opposition Members have a monopoly on the argument for independence; they do not. Independence means something more constructive when used on the Government side, than when it is used on the Opposition side.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
I hear the shouts from Opposition Members, but I agree with my hon. Friend. In making our decisions on the scheme, we need to create sufficient confidence in the process that happens under it. Let us be clear that no two cases will be the same. Some cases will be more deserving of the kind of extra scrutiny to which he refers than others. There will be some cases where it would not be appropriate. In such cases, the facts can be readily established, the explanation can be given and an apology can be made. Cases will differ.
It is right that we come on to amendment No. 19, because it raises important points. I shall happily move on in a moment, once we can move off these other issues. My hon. Friend is correct that we are not setting our face against independence. The crux comes when the person is asked to accept the offer. If they decide that they cannot do so and it is at the point before they sign any waiver with regard to their further legal rights, they will be offered the independent legal advice. We believe that such a provision crucially gives a measure of independence.
I am aware that my hon. Friend would probably want us to go further, but in considering this matter we must be careful that we are not replicating the process on the other side of the line. We should not create a system where unnecessary legal advice is given or where advice is commissioned to create a veneer of independence. The point is that we are trying to do something different. We are trying to get quickly to the point where redress can be offered rather than there being obfuscation and delay by the NHS as it seeks to investigate a complaint against it. The crucial point is when the independent advice is offered to the patient. My hon. Friend has hit the nail on the head in many ways. It is how we reconcile that balance within the scheme proper so that when we reach the point of redress being offered, patients are confident that things have been done fairly and properly.
John Pugh (Shadow Minister, Health; Southport, Liberal Democrat)
I should like the Minister to move on, because I think that we are making heavy weather of this. A distinction between facts and liability seems to be at play. I have certain philosophical difficulties, as one can always be established independently of the other. I do not know whether negligence is a fact or a judgment on responsibility, but I suspect that it will probably be described as both. If those philosophical difficulties are set aside for a moment, if there are facts and liability and they are separate things, is not the fundamental discussion that we are having at the moment about whether things should be done by one agency or by two different ones.
The one agency is the agency being complained about. I do not think that there is disagreement on either side that if we were to opt for two agencies rather than one in-house agency, we would change and denature the scheme. The hon. Member for Ruislip-Northwood asked what the difference is between what is proposed by Opposition Members and what is supported by the Minister. If there is no difference, or if we cannot find any, he certainly should not be supporting an amendment on the subject.
The Minister is offering a scheme that everyone agrees is different from what is proposed by the Opposition. The Minister is robustly sticking to it. He regards what he has as a good thing but Opposition Members regard it as a bad thing. Unless the Minister has a change of heart and wishes the NHS to make a different offer, we are, in a sense, stuck repeating the same arguments.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
The hon. Gentleman in the nicest possible way is helping me to move on, and I am grateful for his invitation to do so. I shall do so by picking up the important point about bureaucracy. Were we to go down the path that the Bill as it stands lays out, the scheme would create unnecessary bureaucracy and cost. The Healthcare Commission would be responsible for overseeing the investigation stage. The scheme authority would be responsible for the second stage, which is determining liability and appropriate level of compensation. No single body would have overall responsibility for the oversight of the operation of the redress scheme as a whole.
In our view, the scheme authority would be compromised and would have no power to ensure that the overall scheme operates effectively. The crucial point to which we keep returning is that we would weaken the vital link between investigation and learning, which was provided by the Bill before it was amended. I agree with the hon. Gentleman.
The Opposition have a further problem, in that the Healthcare Commission says clearly that it is neither qualified nor inclined to take up the role envisaged for it by clause 12. Opposition Members should give careful thought to that.
John Baron (Shadow Minister, Health; Billericay, Conservative)
We and the Liberal Democrats in the other place met the chief executive of the Healthcare Commission. The commission is happy to take on the supervisory role, but the Minister is right that it did not want the secretarial role, so I would ask him to double check his facts in that regard.
On the Minister’s point on costs, he still has not explained how or why they would be substantially increased under our proposal. The cost of an investigation is fixed and inevitable. I repeat the point because he seems somewhat unwilling to address it. If the cost of an investigation is fixed and inevitable, the only issue is who carries it out. If we are simplifying the role of the scheme to one of fact-finding, it cannot be claimed that we are adding to the bureaucracy.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
Let me pick up on the hon. Gentleman’s first point. If he is saying that the Healthcare Commission is ready to take on the role, but has caveats about the scope of that role, why has he not taken the time or trouble to try to amend the Bill to give the Healthcare Commission a role that it feels it can carry out? Clause 12 (5) requires it to
“maintain and publish a list of patient redress investigators”—
the maintenance of such a list seems to me to be a duty that requires proper safeguards and checks to ensure that people are appropriate to be an investigator—and to
“have responsibility for overseeing the carrying out of the functions of such investigators.”
If the hon. Gentleman is saying that the Healthcare Commission does not accept the full role that the Opposition envisage, why has he not tabled amendments to curtail that? The role envisaged is broad and would involve supervision of the operation of the scheme. The Healthcare Commission would be responsible for all the redress investigators and the work that they carried out. That is the guts of the scheme. I return to the point that I have no confidence that that amendment has been properly thought through, or that there is any detail to support the proposals.
Opposition Members might express surprise, but I have yet to find out how many patient redress investigators they envisage, although I heard on Second Reading that they would be akin to coroners. We are left in the dark on all kinds of things. If the commission does not accept the role as it stands, why on earth have the Opposition not tabled amendments to change it?
Judy Mallaber (Amber Valley, Labour)
Has my hon. Friend heard Opposition Members give any description of the patient redress investigators other than, “It’s the person at the top.”? That fills me with horror about the pay involved and so on. Until we know how many there will be, what they will be and whether—as I asked earlier—they will be lawyers, medically qualified people or maybe like coroners, we can have no sense of whether the proposals are bureaucratic or costly and whether they make any sense.
We know that a separate tier will be created. As my hon. Friend the Member for Crawley said, it will stop the NHS taking responsibility for its own mistakes by accepting that responsibility, which is what the scheme that was previously proposed did.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
I agree. There is such a lack of detail about the proposals and a wooliness of thinking that it makes one despair that such stuff should be brought forward and we could be asked to consider it seriously.
Siôn Simon (Birmingham, Erdington, Labour)
I have resisted making the point, but it leaps out at me. I invite the Minister to agree that the proposal from the Tories—and I think the Liberals too—seems extraordinarily Napoleonic. It is an incredibly inquisitorial, Napoleonic, continental, un-British and foreign way of going about things. One wonders what the Tory party has come to when it can recommend something so profoundly continental and foreign as a good idea.
Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)
You were right first time: you should not have made the point.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
At moments such as this, I am glad that the hon. Member for Stone (Mr. Cash) is not on the Committee, because the mere mention of a continental-style scheme could have had him out of his seat. It feels to me distinctly un-Conservative to propose the creation an army of bureaucrats who are empowered to go round the country snooping, investigating and looking into the affairs of NHS trusts. It seems unusual for the Opposition to propose such a scheme. If they are wedded to that proposal, I would be grateful if they made available the supporting detail. My hon. Friend the Member for Birmingham, Erdington is right to draw attention to that sheer lack of detail.
Concerns have been raised about the cost ofclause 12. Modelling work undertaken by the Department projects a possible cost of independently investigating all redress cases of as much as £41 million in the first year. That is the estimated additional cost of the scheme envisaged by the Opposition.
Charles Walker (Broxbourne, Conservative)
My Lib Dem friends have been rumbling away on opportunity costs, but I am slightly confused. Why would it cost any less for the NHS to investigate its mistakes than for someone who was not part of the NHS hospital management structure to do exactly the same job? The Minister’s mathematics—or, dare I say, the mathematics of his civil servants—is intriguing and a little confusing on that point.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
I shall go through the detail for the hon. Gentleman. Opposition Members might find it uncomfortable, but the figure that I quoted is the figure that has been arrived at. The hon. Member for Billericay called our figures spurious on Second Reading, so I hope that he will have cause to reflect on that when I give him some of the detail.
The other point that the Opposition might not like to accept is that they envisage a new function that is different from what is done now, so how can they dismiss the notion of additional cost? They propose that the function be performed by an independent investigator, not by somebody employed by the trust and working within it on patient safety, clinical governance and the complaints system.
The Opposition tell us that they envisage a number of people working at the regional level, which is additional to what is provided. Our modelling, based on the information, shows that the average cost of independently investigating a complex complaint, such as one that might be made in a clinical negligence case, is £2,500. The number of claims settled for less than £20,000 represents approximately 75 per cent. of settled claims. We expect a similar proportion to be covered by the new scheme, although exact numbers are hard to predict.
The intention behind the scheme, however, is to make seeking redress more straightforward. We therefore expect more people to come forward. Modelling work based on patient safety data suggests that improved access to justice under the scheme could cause claims to rise by anything from 2,200 to 19,000 a year. We expect the number of cases falling within the scheme to range between 5,800 and 16,600 in year one.
Making each case subject to independent investigation would result in a total cost of £41 million, based on the figures that departmental stakeholders have provided to us through independent investigations. On the lowest estimate of 5,800 cases, the additional cost to the NHS would be some£14 million, but we expect significantly more cases to be identified under the scheme.
John Baron (Shadow Minister, Health; Billericay, Conservative)
Those figures are completely spurious and I sincerely ask the Minister to check them with his civil servants. The bottom line is that the cost of investigation is fixed and inevitable; the issue is who carries out the investigation.
If we are simply deciding on the change regarding who will carry it out to ensure that there is independence, how does the Minister get the figure of £41 million when all we are saying is that the person at the top should be independent and should replace the person whom the Minister no doubt envisages?
I ask hon. Members to bear it in mind that fact finding is essential to fault finding, and that under the Government’s proposals the fact-finding stage will have to be gone through anyway before the point of determining liability is reached. All we are saying is simplify the scheme by restricting it to fact finding, but ensure its independence by having redress investigators. How can that add £41 million?
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
Let us take the lowest estimate, and suppose that there are 5,800 cases in year one. We are confident that the figures are not spurious. The scheme has been created carefully, with an eye to how many cases will come forward based on historical trends in clinical negligence cases under the limit that we are setting and on the fact that the scheme is likely to encourage more people to come forward who may not otherwise pursue a case. The figures are not plucked out of the air, but are grounded in fact.
If the hon. Member for Billericay is saying that there is no additional cost to investigating all those cases independently, I strongly disagree. I do not accept that it is exactly the same and that it requires simply that people be reallocated to different duties.
If investigators are to be independent of thescheme members, as the hon. Gentleman envisages, and medically qualified—the point that he and the hon. Member for South Cambridgeshire (Mr. Lansley) made on Second Reading—it is inconceivable that there would not be significant extra costs to the scheme.
Furthermore, there would be significant extra administration involved in setting up such a group of people, which would be accredited and maintained on a database, as outlined in the proposal made by the hon. Member for Billericay. When I mentioned the figures, Opposition Members fell about laughing, but I ask the hon. Gentleman to tell me what the figure should be. If Opposition Members are saying that they have it absolutely proven that there would be no additional cost, will they give me the details? As it is, they want it both ways: they are not providing any detail, but they are rubbishing our figures.
Judy Mallaber (Amber Valley, Labour)
Is my hon. Friend becoming as confused as I am by the hon. Member for Billericay? Did he not just say that only the person at the top would be independent? If so, does my hon. Friend now understand the hon. Gentleman to be saying that the person at the top—the independent investigator—would simply supervise all the staff doing the fact chasing, or would that person have their own staff? The hon. Gentleman has referred to that person only as the person at the top. Who would be the staff under him, those doing the investigations?
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
I do not mind admitting that I am deeply confused, but I am not the only person in this room who is deeply confused about the nature of the scheme that the hon. Member for Billericay proposes. He said that the independence would come from the person at the top, but the Bill creates something entirely different. Indeed, on Second Reading, the Opposition talked about something entirely different in introducing these changes, but it is for them to answer those points.
As it is, we have no clarity whatever. As I understand it, under the scheme proposed by the Opposition, the investigators must be new people from outside NHS organisations—that is, not employed by the scheme members. Higher salaries would have to be paid if those people were to be medically qualified, because many of those who currently carry out the work at trust level are not medically qualified. People might not want to be reminded of that, but it is true. If those staff had to be relocated in order to carry out their functions, there would be further extra costs.
Sandra Gidley (Shadow Minister, Health; Romsey, Liberal Democrat)
I find it difficult to follow the Minister’s logic. He seems to be saying that the cost of an independent investigation is something like £2,500, but it is not clear whether he thinks that that is the extra cost. Clearly, within that figure, which he seems to have extrapolated according to the predicted number of cases, there is an amount that an investigation would cost anyway. We believe that the Department’s maths might be at fault, but I shall give the Minister the benefit of the doubt at this point.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
If an independent organisation carries out an investigation, the costs fall to the structure that is supporting that investigator in carrying out that particular function. We have heard a lot of noise from Opposition Members, but nobody has said who is to employ the investigators. If Opposition Members can tell us who is to be the employer of this army of investigators that is to set out to do the work, we might be able to bear down on the precise additional costs of the scheme. However, we have not had that level of detail, and at the moment we are simply considering a requirement that each case will be independently investigated by a patient redress investigator. Going by departmental figures, the average cost of an investigation into a complex clinical negligence claim is £2,500. People at trust level will continue to work on clinical governance. Those people should play that role, and they will do so once we delete the clause. However, it is right that we should have this discussion and, in the absence of anything else from the Opposition, demolish this ridiculous proposal.
John Pugh (Shadow Minister, Health; Southport, Liberal Democrat)
There is a paradox in what the Minister says. He claims that his civil servants have carefully and meticulously modelled the proposal almost to the last penny, but that he barely understands the scheme. He cannot claim both things. Can I test his understanding of the modelling? Is there a presumption behind it that providing for independent investigators is in some way mirroring what is done by hospital managers who might, in a more adversarial climate, follow cases in some detail themselves? One could argue, prima facie, that hospital managers, freed from the chore of having to investigate a number of really complex cases, could do something such as getting their deficits down. However, if they are still consumed with issues of clinical negligence, the Minister has a better point.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
On the hon. Gentleman’s first point, in the absence of any detail it is difficult for anybody to support the clause, or for us to begin to have a proper discussion. As I have said, we know that the people should be independent. We were told on Second Reading that they must be medically qualified. A parallel has been drawn with the coroners system, and we have heard different suggestions.
I have been told from the Chair that this is not a new clause; it is part of the Bill. In the absence of any detail, I hope that the Committee will agree that it is right that, in considering whether it should remain part of the Bill, we should rigorously test whether the costs are justified. Our figures, properly put together by the Department, suggest that those costs are likely to be close to £41 million.
Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)
I have been listening carefully to the Minister, and he rests his case on a distinction in the understanding of independence, but above all on a comparison of costs and the introduction of new costs under the clause that he thinks are not supportable. If he is genuine in believing that he has a truly comparative set of figures—apples with apples, whether medically or non-medically qualified, because neither in the clause nor in his scheme do the people have to be medically qualified—and putting to one side the underlying suspicion that using an organisation that has to generate profit is bound to cost more than using those employed in the public services, because I am sure that he would not want to be so tendentious as to argue that, is he right to expect us to debate the subject without putting his calculations in the Library so that we can examine them? It strikes me—perhaps he will confirm it—that he is comparing the full employed costs in the Opposition’s proposals with the marginal costs used for the purposes of his own calculations. That is not comparing apples with apples.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
I would draw a distinction between the discipline of today’s Conservative party and the discipline that we showed when we were in opposition. We would not have made such spending commitments without costings to support them. In fact, I would have been sacked as a health researcher had the then Opposition supported such a thing.
The hon. Gentleman challenges me about my figures, but he should give us clarity on the detail of what he proposes—how many staff, who will employ them, what will they do, how many cases will they investigate in a year? He should clarify the matter so that we can consider the costings that he seeks to impose on us under the clause. In the absence of that detail, we cannot be categorical about saying that it will be that much. I am confident that the independent investigation would place additional costs on the service, but we would lose the benefits—the local ownership of the problems, people facing up to the problems, the positive learning culture at the local level. I argue directly that the hon. Gentleman’s proposal would give us extra costs but take away the benefits of the scheme. On that basis, I think that we should reject it out of hand.
Siôn Simon (Birmingham, Erdington, Labour)
I do not want to detain the Minister on the clause—surely we have done it to death by now—but I ask him to confirm my understanding, which is that opposition to the proposal does not rest on the cost. It is anything but that; the argument rests on the fundamental flaws of a silly add-on to a sensible Bill. The Minister cannot be expected to take a completely vague set of proposals with no detail and assume that they will not have a cost. It seems to me that the Opposition have come up with a wide range of numbers. They completely refuse to put any detailon their proposals. The hon. Member for Southport (Dr. Pugh) says that the Minister cannot have it both ways; by the same token, nor can the Opposition. They cannot give us a half-hearted half clause with half a set of proposals and then damn the Government for not costing them exactly.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
Absolutely; I could not agree more with my hon. Friend. I do not object to the proposal on grounds of cost. The question is whether what is proposed is worth paying for, and I say that it is not. Indeed, it is worse than that. It damages a consensual partnership-based scheme, replacing it with something that has the costs but not the benefits. I doubt whether the Opposition want to hear this, given the way in which they are flannelling around, but they have failed to hit the nail on the head.
If I may, I shall move on to amendment No. 19, which has rightly been mentioned. The amendment enables the scheme to make provision for the independent assessment of the eligibility of cases for redress under the scheme in specified circumstances. Clause 11 requires the Secretary of State to make provision in the scheme for the scheme authority to have functions in connection with the scheme. It is intended that the scheme authority will be an existing special health authority—the National Health Service Litigation Authority—which will be able to build on its existing experience and expertise in handling clinical negligence cases to support local organisations in delivering redress. The NHSLA has the resources, expertise, experience and skills mix to oversee delivery of the redress scheme. It has the systems to administer claims for clinical negligence against NHS bodies and an existing relationship with every trust in England as a result of its work on the clinical negligence scheme for trusts. That unique relationship means that it is in a strong position to be the scheme authority.
Amendment No. 19 would, in effect, provide for powers to enable decisions about eligibility to be made by a person or body other than the scheme authority. It would seem to be intended to allow an appeal against the scheme authority’s assessment of eligibility in specified circumstances, and I shall resist it because we have put in place sufficient safeguards, as I shall explain.
We recognise that there are real concerns that there should be independent oversight of the investigation so that it is not a purely in-house investigation. We have provided sufficient safeguards to address those concerns, but I shall continue to listen to what my hon. Friend the Member for Birmingham, Erdington has to say on the issue. The Bill puts in place a complaints mechanism for the redress scheme and provides for independent oversight of the investigation. In cases of maladministration, the health service ombudsman will ultimately determine whether cases have been dealt with appropriately. Maladministration has been interpreted to cover a wide range of bureaucratic bad practice, and that will enable the ombudsman to investigate allegations that individual cases have been poorly investigated. That is a lever to ensure proper consideration at local level.
John Baron (Shadow Minister, Health; Billericay, Conservative)
I thank the Minister for giving way, because the issue of how we guarantee independence is important. Does he not accept, however, that the ombudsman can look only at the administrative and procedural, not the substantive aspects of the process? How can he claim that the ombudsman will guarantee independence when she will investigate only administrative and procedural matters?
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
The hon. Gentleman is correct that the ombudsman has no formal power to enforce her recommendations, but as he will know, those recommendations are almost always followed. The ombudsman will have a particular duty to report, not on whether the right conclusion was reached with regard to liability, but on the process and on the way in which the scheme is handled. That is only one of the measures that we are putting in place to ensure that there is independent oversight of the scheme. If I may make a point that was made on Second Reading, the current health service commissioner has welcomed the fact that the operation of the scheme will fall clearly within her jurisdiction, subject to the conditions set out in the Health Service Commissioners Act 1993. She says:
“I hope that the fact that an independent review...will be available will give reassurance to both complainants and the NHS bodies involved”.
I mentioned the intention that the Secretary ofState will devise a new national NHS standard relating to redress and that the Healthcare Commission will devise assessment criteria against which the operation of the scheme will be reviewed. That approach willalso provide an independent overview of the redress scheme at local level. Putting in place further provision for independent assessment would duplicate the ombudsman’s role and add unnecessarily to the bureaucracy and cost of the scheme.
Furthermore, as we have made clear throughout, the redress scheme will not remove a patient’s right to go to court. That right will remain throughout the process, up to the point where an offer is accepted. The scheme aims to fast-track deserving cases through the system and to make savings on unnecessary legal costs. It is to no one’s advantage to reject deserving claims and to force them into the courts. Doing so would work against the aim of the Bill and the scheme that we hope to create.
We have had a long debate on the point of these amendments. I hope that I can soon bring my remarks to a conclusion. One claim made by the Opposition in The Times today, no less, is that the NHS would be acting as “judge and jury”, as the quote would have it. We have had a long discussion about whether there should be more independence and whether the NHSis capable of coming up with a fair conclusion. I fundamentally believe that it is.
While it is true that there is a judicial authority requiring separation between fact finding and fault finding, that applies only where rights are being determined. It is crucial for Members to understand that no rights are determined under our scheme. Neither the NHS nor the NHS Litigation Authority is acting as a judge; the NHS may merely make offers that may satisfy a patient’s rights. There is no determination of whether they have the rights; it is simply that an offer may be made to prevent a legal process from taking place.
Overall, I firmly believe that the difficulties inherent in the proposed scheme structure currently laid out in clause 12 create confusion and will lessen the effectiveness of the redress scheme. The Government amendments that I propose would work to reverse the amendments made in another place: they would put back in place the strong links between scheme members and the scheme authority, reduce unnecessary bureaucracy and associated cost, and enable the scheme to fulfil its aims of better meeting the needs of patients harmed in the course of their health care and of enabling scheme members to learn from mistakes and improve service delivery.
Anne Begg (Aberdeen South, Labour)
Before I call speakers in the debate, may I just clarify a procedural point in the light of something that the Minister said at the beginning of his speech? Government amendment No. 6, which proposes to “leave out Clause 12”, has not been selected. Instead, should clause 12 stand part be pressed to a Division, at that stage it would be up to individuals who want it to be left out to vote against the clause standing part of the Bill.
Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)
On a point of order, Miss Begg. Will you clarify that the clause 12 stand part debate will therefore be taken when clause 12 is reached in the course of our deliberations, despite its being grouped at this point for the convenience of discussion?
Anne Begg (Aberdeen South, Labour)
It is open for discussion under this group, but the vote will be taken as we proceed through the Bill in the correct order.
John Baron (Shadow Minister, Health; Billericay, Conservative)
I do not doubt that the Government’s proposals are well intentioned, but other Conservative Members and I believe that they will not be beneficial to patients. They will create confusion. The Bill, in its original form, made a number of errors that I shall, I hope, highlight during the debate on this clause. I welcome interventions from the Minister on the cases that I am sure that he and others—
John Baron (Shadow Minister, Health; Billericay, Conservative)
No, I would like to make some progress first.
We all know that reform is needed. The Conservative party approves of the spirit and intentions of the NHS Redress Bill. As we know, the state of clinical negligence is largely fuelled by legal aid. We also know that it is in a mess, and is protracted, costly, complex and wasteful. I do not think that any disagreement exists between us on those issues. A claim can typically take several years, with legal administrative costs often exceeding the money paid to the claimant.
The present system also does not reflect patient priorities. As we have discussed in this Committee, what is often required by the aggrieved patient is an explanation and apology, where due, and a reassurance that whoever committed the clinical error acknowledge his or her wrongs, that lessons are learned and that they have not been lost for the benefit of other patients. However, the system as it operates is not achieving that goal.
The system is also widely viewed as unfair. Most clinical negligence cases are legal-aid funded but most people are not eligible for legal aid. Of the vast majority who cannot access legal aid, many are put off pursuing a negligence claim because of the cost involved regardless of whether the grievance is legitimate.
The NHS is often in a no-win situation, as we know. Even the costs of winning a case are irrecoverable if the claimant is funded through legal aid, which might result in cases being settled out of court regardless of their merits because it is cheaper to do so that to contest them. Last year, some 6,200 legally aided clinical negligence cases concluded and it is not surprising to learn that 2,754 of those went beyond the investigation stage, with a substantive benefit in 56 per cent. of cases—roughly 1,400—and an overall success rate of 23 per cent. The hope is that the scheme will deal with that unfairness.
The issue is important because it partly explains the chequered history of the Bill, the origins of which go back to June 2003 when Sir Liam Donaldson published “Making Amends”, which considered the problems of the clinical negligence system and the options for change. As an aside, “Making Amends” was highly critical of the concept of tort, but its trouble was that it blamed the law for the ills of clinical negligence litigation when the real trouble was with the lawyers, or rather with their abuse of the legal aid system.
We have come full circle because tort-based liability is what the Bill will be about if the Government have their way. There is nothing inherently bad about tort law. It is part of the law of this country and applies generally. There is no reason why clinical practice in this country should not be subject to its scrutiny, but the redress scheme is not the place to do it. It is not a court and therefore it is not appropriate to determine civil liability. Determinations might not, therefore, be legally binding and it will replicate a court system without bringing closure, certainty or finality.
“Making Amends” contained 19 recommendations, but the Bill gives effect only to recommendation 1; the other 18 are not addressed. As we know, the Bill’s objective is to create a scheme for efficient and speedy redress for NHS patients who have suffered through negligence while receiving treatment. It is a laudable aim which we can all support.
The intended scheme provides investigation when things go wrong, remedial treatment, rehabilitation and care when needed, explanations and apologies, and financial compensation in certain circumstances. Its scope is ambitious and the Bill proposes a package of remedies—a one-stop shop, if I can put it that way—but it is the underlying policy that gives rise to our concerns.
The NHS redress scheme seems mainly to be concerned with compensation, since it can apply only where there is a qualifying liability in tort. It appears to be conceived as an in-house settlement-making process, rather than an independent judicial investigative process. In contrast to what the Minister has said, I would argue that it is adversarial rather than inquisitorial, because the Bill in its original form aims to involve determining liability.
Liability is to be assessed by the NHSLA rather than being determined by an independent tribunal, and compensation is to be offered by the NHSLA rather than awarded by an independent tribunal. Any offers, according to the Government, will be made without prejudice and neither offers nor settlements are to be regarded as an admission of liability for the purpose of any subsequent litigation. There can be no appeal as the process is not judicial. Offers are to be accepted or rejected on a take-it-or-leave-it basis.
The concept of a one-stop shop is superficially attractive, but on closer inspection the Bill was found to be fraught with problems. It was over-ambitious, attempting to combine conflicting functions. It confused fact finding with fault finding, inquisitorial with adversarial and open proceedings with without prejudice proceedings. The Bill was fundamentally flawed as it did not provide what was needed, which was an open, independent fact-finding investigation that reflected the interests and priorities of patients. That is why we combined forces in another place with the Liberal Democrats and Cross Benchers to force amendments on the Government that ensure that the Bill provided for an independent investigation. Indeed, our amendments ensured not only that the investigation would be independent, but that it would be confined to establishing the facts, and not concerned with fault finding. We believe that our amendments are good for patients and the NHS.
The Bill, as amended, now addresses one of our key concerns: the need for an independent investigation. Otherwise, the Government’s proposals would have had the NHS investigating itself as judge and jury in its own court—a modern star chamber. That would have represented a clear conflict of interest, with the NHSLA being asked to take responsibility for running the scheme, determining liability and awarding compensation.
I take issue with the Minister’s suggestion that, by various measures, independence is guaranteed. During his introduction, he suggested that there will be independent legal advice at the time that an offer is made. That will not guarantee independence in the process itself. Having a lawyer—an additional cost, by the way—advising on an offer does not guarantee that the process itself is independent.
The Minister went on to say that patients will still have the right to go to court if they are not happy. That is bizarre; I put it to the Minister that the point of the redress scheme is to provide an alternative to going to court. It would be absurd if the key to the success of the alternative were a right to appeal to the original.
Graham Stuart (Beverley and Holderness, Conservative)
Further to my hon. Friend’s point about the need for independence in the fact-finding stage, I draw his attention to the parliamentary brief on the Bill, supplied by the Law Society, which states:
“It will be difficult for solicitors to advise applicants on the fairness of an offer unless such queries”—
this is about fact finding—
“are resolved at the Investigation stage and prior to the issue of an offer”.
That makes my hon. Friend’s point entirely. The Law Society supports the view of the need for an independent understanding of the facts.
John Baron (Shadow Minister, Health; Billericay, Conservative)
My hon. Friend makes a valuable point. Having lawyers advising at the end of an offer does not guarantee independence of the process itself.
The Minister went on to say, however, that there could be an appeal to a health ombudsman, while the Healthcare Commission oversees the scheme’s implementation.
Siôn Simon (Birmingham, Erdington, Labour)
I agree with the hon. Member for Beverley and Holderness that independent legal advice needs to come earlier in the process, in order for the scheme to work, be more meaningfully independent, and be perceived as such. I do not think that having legal advice at the end empowers sufficiently potentially wronged patients to make decisions during the process of interlocution with the trust.
Does the hon. Gentleman agree with me that were such a change to be made and the Government to move slightly in that direction, the scheme would have a measure of independence that would provide the credibility that the scheme needs? Would that not obviate the need for the kind of huge apparatus involving examining magistrates crawling the country that Opposition Members have joined together to dream up?
John Baron (Shadow Minister, Health; Billericay, Conservative)
I shall follow convention and thank the hon. Gentleman for his intervention.
Let us start with the hon. Gentleman’s last point. He has totally misunderstood the concept of NHS redress investigators, and if he would like to discuss it in another place outside, I would be happy to do so.
On lawyers, our point is that if we want a more open structure and to encourage a culture change in the NHS, we need open and transparent proceedings. That is best provided by separating the fact finding from the fault finding because involving lawyers in the scheme to determine liability does not make for an open, transparent and honest investigation—[Interruption.] Let me finish.
It does not make for an open, transparent and honest investigation into what went wrong and what should be done to put it right. I am pleased that the hon. Gentleman agrees that simply having lawyers at the end of the process advising on an offer can hardly be described as guaranteeing the independence of the process as a whole.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
I think that there is still a misunderstanding here, which I hope to clear up. The scheme, as envisaged, would separate fact finding from fault finding in that, locally, it is for the NHS body to carry out the investigation into the facts, and it is then for the scheme authority to consider whether there is liability and, if so, what it should be. In our scheme, there is a separation. The difference is that the hon. Gentleman envisages a scheme in which—this point was made by the hon. Member for Southport—two different authorities control the first and second parts. It would not be a unified scheme with a link between investigation and conclusion. That is the point that we are dancing around.
John Baron (Shadow Minister, Health; Billericay, Conservative)
I am pleased that the Minister made that intervention, because that is the point that I made to him earlier. The Government’s scheme is already a two-stage process. If Conservative Members are suggesting that the redress scheme should confine itself to the fact finding, it is difficult to argue that our scheme would cost a lot more than the Government scheme, because the Government’s suggestion would have the NHS also trying to determine liability, and there are many costs involved with that. If we are saying that it should be confined to fact finding, the whole concept of that £41 million, to which I shall return, is thrown into the melting pot. I am pleased, however, that the Minister clarified the point about the Government’s scheme being a two-stage process.
Judy Mallaber (Amber Valley, Labour)
Is the hon. Gentleman nowsaying that the “suitably qualified” patient redress investigators will not be lawyers? What does “suitably qualified” mean, and what qualifications would such lawyers be required to have? Is he talking only about the person at the top? If so, who will do the bulk of the detailed work in investigating cases, who will employ them and what qualifications will they have? We really need some clarity on these points to understand whatis discussed.
John Baron (Shadow Minister, Health; Billericay, Conservative)
We will come to some of those details later, and I shall address them then, but it is important to remember that we are dealing with enabling legislation. That is why there was little detail in the Government’s original proposals. Can the hon. Lady find the extent of detail that she is asking of our proposals in the Government’s original Bill? If so, I would be interested to see it. We are talking about principles and how best we can ensure independence.
It might not be obvious to the Government, but it is obvious to us that if one restricts the functions of the scheme as we would envisage it, without adding, and simply confines it to fact finding, and does not involve it in the second-stage process, it is difficult to argue that it will cost more. The system is in place; a system of fact finding has to be in place. The Minister has just accepted that we have to have a fact-finding stage before we can get to the fault finding. All we are saying is: restrict the system to fact finding. The question is who should run it. I shall return to the point about costs in a while. [Interruption.] I think that I shall regret this but I will give way.
Siôn Simon (Birmingham, Erdington, Labour)
I am grateful to the hon. Gentlemanfor giving way. He told me that I completely misunderstood the Conservative provisions, and suggested—slightly unconventionally, I thought—that he should explain them to me outside. I am happy to talk to him outside any time he likes, but sticking with the convention that we should talk about these things inside, I must say that, having read the clause that he has written, I think that I understand perfectly well what it means. It does not make great sense to me but, in a spirit of constructive consensus, I take the point that this is an enabling Bill that does not contain a lot of legislation. It would, therefore, be reasonable for the Opposition to table a clause that was similarly enabling and not packed with detail. However, this clause does not sit happily and comfortably within the framework of the rest of the Bill, and no reasonable person could claim that it does. It does not go with the grain of the Bill, but sets up a completely different structure that virtually negates the thrust of the Bill. In that case, it is not unreasonable to say that I do not understand. The hon. Gentleman should explain to us—here, inside, rather than outside—how he can sincerely say that the clause goes with the grain of the Bill and sits comfortably with what it is trying to do. Many of us would like to see it improved.
John Baron (Shadow Minister, Health; Billericay, Conservative)
I shall come to a number of the hon. Gentleman’s points. First, let me make just one point to him. It is going with the grain because it is simply focusing on fact finding. The Minister has, rightly, acknowledged that, as was said on Second Reading, the Government’s suggested Bill contains a two-stage process: a fact-finding stage undertaken by the trust, and a fault-finding stage undertaken by the NHSLA. All that we are saying is that we should restrict the Bill to the fact-finding stage and then, by having the redress investigators, guarantee independence in order to give that fact-finding stage credibility in the eyes of patients. That suggestion is not going against the grain of the Bill at all; if anything, it is going with the intentions of the Bill. It is just beefing up the independence side of things, which is terribly important if we want the scheme to have credibility in the eyes of patients.
The other issue on which I take issue with the Minister is that of independence, and the Government’s claims about it. There would be an appeal to the health ombudsman and the Healthcare Commission, but they, as the Minister acknowledged, would be concerned with the administrative and procedural aspects of cases, not with their substance. It is important to understand that, because that does not itself guarantee independence. Here we have promises about lawyers at the end of the system advising on the offer; patients having the right to go to court; and appeals to the health ombudsman and the Healthcare Commission. However, if we look at them in detail they are all leaky buckets. They do not hold water. They do not, individually or collectively, guarantee independence. The best way to guarantee independence is to have somebody independent sitting at the top to examine the facts.
Let me make a little more progress. I refer the Minister to the Constitutional Affairs Committee report, “Compensation Culture”, published on 1 March, which states, in paragraph 93:
“We are concerned that if the organisation which is responsible for defending trusts and hospitals is also charged with running the scheme, there may be a perception (whatever the reality) of a conflict of interest.”
However diligent the NHSLA is, the patient will never have absolute certainty that he or she has been dealt with fairly, so the process will lack credibility. That is a key point. I know that we have kicked it around a bit, but it is terribly important. If the scheme has little or no credibility, we really are pushing uphill in trying to change the culture of the NHS. Justice must not only be done, it must be seen to be done. Independence is a basic principle of natural justice, enshrined in the rule against bias that no man may be judge in his own cause. However, that is exactly what the Bill did in its original form. I must tell the Minister that we consulted widely on the issue, and there was widespread concern about the lack of independence in the Government’s original proposal. That was the view of the Law Society, the Association of Personal Injury Lawyers, the Bar Council, AVMA and various senior practitioners in law and medicine. The Minister himself referred to the article in the law section of today’s edition of The Times, which made that very point.
As amended, the Bill provides for a robust, independent investigation that is limited to fact finding. As we have discussed many times, fact finding is the first stage, which must precede any consideration of fault. The investigation should be conducted by independent NHS redress investigators as an inquisitorial process, and the coroner’s inquest provides a model.
Moreover, the investigation that we envisage complies with the spirit of the Inquiries Act 2005, which provides that inquires may be wide ranging, although limited to fact finding, and that they may not consider legal liability. That should not, however, prevent fault from being inferred from the determination of fact. Those provisions are in operation up and down the country, having undergone parliamentary scrutiny and been passed.
Let me read out a couple of sentences from the explanatory notes to the Act to help the Committee. The explanatory notes to section 2 state:
“The purpose of this section is to make clear that inquiries under this Act have no power to determine civil or criminal liability and must not purport to do so. There is often a strong feeling, particularly following high profile, controversial events, that an inquiry should determine who is to blame for what has occurred. However, inquiries are not courts and their findings cannot and do not have legal effect. 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 liability or to punish anyone.”
Basically, we are arguing that the Act’s provisions operate up and down the country, and the investigation process that we envisage might provide the basis for any explanation, apology, recommendations and assessment of civil liability.
Our vision for the redress scheme is based on principled policy and actual practice. The separation of powers is a fundamental principle of our constitution. The judiciary and the Executive are separated, and the separation of functions that we envisage derives from that basic principle. In other words, we suggest that there should be an independent, inquisitorial fact-finding process, in which no legal rights are asserted or defended, and which is therefore not adversarial. That is the key point of difference between the Minister and Opposition Members. For some reason, the Minister claims that our scheme, in which the investigation would be limited simply to fact finding, is more adversarial, but it is not. We aim to separate fact finding and fault finding and to keep the determination of liability out of the scheme. That is not adversarial.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
Will the hon. Gentleman give way?
John Baron (Shadow Minister, Health; Billericay, Conservative)
I hope that we are not going to rehearse the previous arguments.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
I have listened carefully to the argument that the hon. Gentleman is developing. Can he tell us in clear terms how his scheme could be inquisitorial but not adversarial?
John Baron (Shadow Minister, Health; Billericay, Conservative)
I have just read out how such a scheme operates under the Inquiries Act. One can have a scheme that examines the facts and tries to determine what may have gone wrong and what should have happened, but without determining liability. Such a scheme is in operation under the Inquiries Act.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
The hon. Gentleman will know that the Act deals with grave and enormous matters of public interest, but we are dealing with cases of redress that might involve a narrow set of issues. It is highly spurious to draw a comparison with the Act—this is an entirely different process. I fail to see how he can argue that there is a parallel between the individual complaint brought by an individual citizen about an adverse incident and an inquiry into a major public disaster or major failing such as the situation at Alder Hey or at the Bristol Royal. It is a different matter entirely.
John Baron (Shadow Minister, Health; Billericay, Conservative)
With respect, the Minister is trying to set up Aunt Sallies. Those things are not mutually exclusive; we are talking about the principle of finding the facts. If the Minister has trouble with the Inquiries Act 2005, he could perhaps examine how a coroner’s court operates. He must not forget that some cases could be serious and attract the kind of headlines to which he referred in some of his examples.
I am referring to the 2005 Act because it has been enacted, undergone parliamentary scrutiny and is in effect up and down the country. It clearly established the principle that one can try to establish the facts and go all the way through the process, including trying to determine what should have happened, without going the extra step of determining liability. Will the Minister examine that Act, because it may help him better to understand what we are trying to suggest with regard to the concept of limiting the redress scheme simply to fact finding. I say that genuinely.
If there is no legal issue to be investigated, it is difficult to see the need for lawyers to be involved. We are dealing with medical facts, not with legal liabilities. The question of independent assessment for eligibility for compensation under the scheme therefore does not arise, since such eligibility is an internal matter for the NHS Litigation Authority.
The Secretary of State characterised our proposal as a two-stage scheme—the Minister has confirmed that in some of his interventions—involving two administrative bodies. That is misconceived. The investigation that we envisage does not require another bureaucracy; it requires the same administration, only operating under the direction of an independent person for the purpose of the fact-finding investigation. The key concept is the separation of function. I politely suggest that the Minister’s suggestion that our proposed scheme involves duplication of effort is misconceived. There are essentially two different functions: fact finding and fault finding. We simply suggest that we separate them so that they are performed by different persons.
Amendment No. 19 has been tabled by the Liberal Democrats. If we accept that splitting fact finding and fault finding is appropriate, that amendment is not necessary because it replicates the courts system within the redress scheme. I thought that we had agreement in the House of Lords. I am a little disappointed that the amendment was tabled, given the co-operation between the Conservatives and the Liberal Democrats in the other place on the importance of separating those two different functions. The determination of liability by an independent body confuses the issue. If we accept that fact finding and fault finding are separate, such an amendment is superfluous to requirements, and I again refer hon. Members to the wording of the 2005 Act.
I shall briefly mention amendment No. 8 because that is all that is required. It is consistent with the 2005 Act. We want a purely fact-finding investigation, and the fact-finding exercise must therefore not exclude just tort but any legal liability.
There are other advantages to the Bill as it stands. I say that in defending clauses 6 and 12. Under our proposals, the investigation of the facts will be open; it will be with prejudice, which means that the findings of fact will be robust and might have evidential value outside the scheme. By contrast, the Government propose that any offer or settlement should be without prejudice and not considered as evidence or admission of civil liability. That must mean that the proceedings leading up to the offer are either without prejudice or privileged. An investigative process can hardly be described as transparent if its findings are not open, but that will be the consequence of the Government’s proposal to mix up fact finding with fault finding.
If an offer is rejected, under the Government’s proposals the findings of the investigation cannot be used for any compensation claim outside the redress scheme. Separating fact finding from fault finding would make the findings of fact by independent investigators open. Thereafter, patients would have a range of options available to them for settling disputes in appropriate cases. In addition, the NHSLA may offer compensation on the basis of its own privileged assessment of its liability.
We stand a better chance of changing the NHS and making its culture more open if proceedings are transparent and confined to fact finding. Introducing the lawyers complicates the issue, and we will stand less chance of succeeding—I mention them, because the Government’s proposed scheme would try to determine liability as well as establish the facts. Introducing the lawyers does not make for an open, transparent investigation for the benefit of patients and the NHS.
Compensation under the amended redress scheme is as in the original Bill. However, our proposal would provide patients with a range of options at the end of the fact-finding stage, should they wish to seek compensation. They may accept an offer under our proposed redress scheme, seek to negotiate or mediate a settlement, or enter into a scheme. The courts are available as a last resort. Different cases may require different approaches and procedures.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
The hon. Gentleman has just mentioned a further scheme—a resolve-type scheme. I am in danger of believing that the arrangements that he is proposing would be deeply confusing to the public. He seems to envisage people being able to go down all kinds of avenues and for the scheme to be administered by two different bodies. I fail to follow why the scheme would be anything other than deeply confusing. Can he give us more detail on the further resolve-type scheme that he has in mind?
John Baron (Shadow Minister, Health; Billericay, Conservative)
I ask the Minister to consider the proposals more carefully. It is simple: at the end of the fact-finding stage, the patients would have a choice of options open to them. There is no confusion about that. If they felt that they wanted to accept the offer proposed under the redress scheme through the NHSLA, they would be at liberty to do so. Alternatively, they may seek to negotiate a mediated settlement, or enter into a resolve-type scheme. That would be up to them. The point is that different cases might require different approaches and procedures. Choice and flexibility should be available.
Moreover, the fact-finding investigation that we propose could provide the basis for settlement and assessment of liability for any proposed claim. We propose that a Mackenzie-type friend should be available to provide support and guidance for any intending claimant.
The Bill as currently drafted, particularly clauses 6 and 12, more accurately reflects patients’ priorities. As we all know, research has shown that when something has gone wrong, patients often want only an explanation, an apology and an assurance that lessons have been learnt for the benefit of others. That point has been made a number of times. Compensation does not rank very high, and the open, independent fact-finding investigation that we propose reflects those priorities. Patient safety is promoted by ensuring that lessons learnt are not lost, which is terribly important. The Government’s focus on compensation does not reflect patient priorities, however, and could subvert the purpose of the investigation. It also means that the importance of the explanation and of any lessons learnt risks being relegated.
On spurious claims, I would argue that the original Bill would have provided a demand-led, open-ended, cost-free and risk-free scheme for claiming compensation. That would have proved unnecessarily costly—there is no downside in someone having a go under the Government’s proposals—and it would have been unnecessarily wasteful. The money would be better spent on patient care.
In addition, the Government state in the regulatory impact assessment that
“the vast majority of opportunistic claims will be easily rejected”.
The Government will struggle to provide evidence for that. The success rates in clinical negligence litigation are modest, and experience shows that spurious claims are not easily rejected. Indeed, claims without merit may be compensated because it can be cheaper to settle a claim than contest it.
Likewise, the Government’s original redress scheme, under which the claimant would have been entitled to free legal assistance to help him pursue his claim against the NHS, provided every incentive for people to pursue opportunistic cases. I mentioned to the Minister on Second Reading that the Government are concerned about the matter; he will no doubt be aware that last year another Minister talked of introducing conditional fee arrangements as a way of ensuring that only claims with merit were taken forward. However, that idea was shelved.
The Government say that their costings suggestthat our scheme would cost the taxpayer a maximum of £41 million more than if the Bill was left in its original form. That figure is totally spurious. There are all sorts of holes in that claim. For example, their estimate of additional cases has a ten-fold range from 2,200 to 19,000. I would argue that the cost is not additional but inevitable, as there would have to be an investigation, whether by the NHSLA or by independent investigators. Indeed, it could be argued that our scheme, as presently envisaged, could result in cost savings. For example, there would be no need to pay a lawyer to oversee and give advice on an offer. It would not be required under our scheme.
I return to the point that if we simplify the scheme and confine it to fact finding, and not have that additional stage and the expense of determining liability, it would be difficult for the Government to argue that our scheme would somehow be more expensive than what they originally proposed.
Diana Johnson (PPS (Rt Hon Stephen Timms, Chief Secretary), HM Treasury; Kingston upon Hull North, Labour)
On Second Reading, I asked the hon. Member for South Cambridgeshire, the shadow Secretary of State for Health, the same question as that raised by my hon. Friend the Member for Amber Valley (Judy Mallaber). I asked what qualifications would be needed by those who held the title of patient redress investigators, and whether they would be clinicians or lawyers. If I recall it correctly, he said that he thought that they might be lawyers, but might be clinicians. We have heard a lot this afternoon about lawyers being expensive; if we are going to have clinicians and lawyers, the costs of the redress system envisaged by the hon. Gentleman will increase automatically, and might reach the figure given by my hon. Friend the Minister.
John Baron (Shadow Minister, Health; Billericay, Conservative)
There is every likelihood that medically qualified individuals will sit as NHS redress investigators. Indeed, that point was made on Second Reading. The bottom line is that we are pushing hard on the concept of redress investigators because we think it the best way of ensuring independence. I have tried to make the point to the Minister that the other guarantees of independence proposed by the Government—whether a lawyer advises on the offer at the end of the scheme or it is done on the take-it-or-leave it basis envisaged under the NHSLA scheme, or if a referral or appeal is made to the ombudsman or the Healthcare Commission—do not, even in their entirety, guarantee independence. The best way to do that is to have someone independent of the trust determining the facts of the case.
The hon. Lady makes an interesting point because we must not forget that the NHS has always had the power to settle claims without resorting to litigation. To characterise the redress scheme as providing a sort of novel, genuine alternative to litigation is misleading because the alternative has existed, and will continue to do so, regardless of the redress scheme. Patients are entitled to treatment by the health service if it is clinically indicated. Remedial treatment is thus a matter of entitlement, and it is difficult to see why that should form part of any redress package; it is there by right and should not form part of a redress package. There is nothing novel about the Government’s proposals.
We do not oppose parts of the Bill dealing with those items, but it is only right that we place on the record our recognition that they are fallacies. Indeed, ideally we would have removed compensation from the Bill entirely because that will be dealt with outside the scope of the Bill by established mechanisms.
I shall return to the issue of cost and address some fallacies. We must not forget that the cost of the scheme itself and of the investigation is fixed and inevitable. Our investigation would be limited to fact finding, whereas the Government’s figure includes the assessment of legal liability, which would be an additional cost.
In conclusion, we believe that our proposals, and the Bill as currently constituted, put patients, not the health service, at the centre of the redress scheme. By confining the investigation of a case to fact finding by an independent process and by separating fault finding, we largely avoid the problems of the Government’s original Bill. Patients’ interests are safeguarded by independence, and there would be a greater chance that patients would have confidence in the system.
Our proposals reflect patient expectations and priorities, and comply with the principles of natural justice. They are prudent, yet fair. They will simplify an over-complicated and over-ambitious Bill. We believe that they will allow patients access to a fairer, and perhaps better result.
As I said on Second Reading, no scheme will be perfect when dealing with such a complex subject, but we believe that our proposals are a substantial improvement on the original Bill presented to the House of Lords last October. It goes without saying therefore that we will oppose Government amendments Nos. 1, 2 and 5 and amendment No. 19, and I ask the Committee to consider supporting our amendmentNo. 8. Otherwise, we ask the Committee to leave the Bill alone.
Siôn Simon (Birmingham, Erdington, Labour)
I start by apologising for not having previously declared to the Committee my interest as a trustee of Action Against Medical Accidents—AVMA—the country’s leading patient safety charity. The Minister mentioned it at the top of his opening remarks, which perhaps put me off, and I did declare it on Second Reading. I hope that no one has been under any illusions about why I said some of the things that I said. Once again, I apologise.
The line that has come into my head most often in the past hour or so is one from Aeschylus that I read recently: “The Gods so hard to wrestle down obliterate us all”. That is not particularly related to patient safety, but it is how I feel as we approach the sixth hour of the debate. With that in mind, I shall try not to detain the Committee too long.
I am glad that we have had a lot of time to debate such important issues. We have said often, although it was said more often on Second Reading—the Minister repeated it several times—that all of us as Members of Parliament get letters about patient redress through our doors all the time. It is important stuff and has an impact on more than 100,000 people a year.
We have had a generally constructive and fairly consensual debate about the Bill, today and on Second Reading, but clause 12 and the debate on it stand outside that consensus and spirit of constructive co-operation. The clause is not a serious effort to improve the Bill, and the fact that it springs from an unholy alliance of the Tories and the Liberals in the House of Lords bespeaks politically motivated efforts to make a point for political consumption, rather than constructive efforts to improve things. I do not decry Opposition Members’ wish to make such points, because that is their job, and all credit to those in the other place for doing it so successfully. Nevertheless, we should call a spade a spade and be clear what we are dealing with. The Bill is important, and there is a lot of agreement about taking constructive measures to improve it. It can be improved, of course, but clause 12 is not a serious attempt to do so. It goes completely against the grain of what the Bill tries to do and does not sit comfortably within its provisions. However, I do not propose to say more about it than that.
I want to talk about amendment No. 19, on which we have a serious problem of understanding and nomenclature. It was tabled by the hon. Members for Romsey and for Southport, and I obviously cannot speak for them. However, many outside organisations, including AVMA, the patient safety charity, of which I am a trustee, would have tabled a similar amendment. What they would have meant by it, and the way in which I choose to read amendment No. 19, is completely different from the interpretation of the Government and the official Opposition. The amendment talks about the independent assessment of eligibility, and the Government take that to mean some sort of additional apparatus or extraneous add-on to the mechanisms envisaged in the Bill. Understandably, that is also how the hon. Member for Billericay read it, but that is not how I read it.
I should have liked the amendment to be read as providing some guarantee that somewhere in the process, under certain circumstances, there would be some element of independent assessment of eligibility for redress. The kind of things that I want to see are those that the Government introduced in their amendments in the House of Lords, which provided for what we generally call joint instruction. The amendment refers to independent assessment, and I would like to make a recommendation to the Government. Under the Bill, there is already a stage at which the redress procedure as envisioned has been gone through, albeit unsuccessfully, and the Government allow for the joint instruction of independent medical experts by the claimant and the trust. At that quite late stage in the process, I would like to see strengthened in the Bill the possibility, already envisaged, of the patient having a right to require some kind of joint instruction arrangement. That would be a safety net, should the procedures in the mainstream, which the Minister talked about in reasonable detail, fail. That is within the spirit of what the Government have stated as their intention. The emphasis is still on the NHS trying to recognise its own errors and to provide redress where appropriate. The safety net is needed only where there is disagreement between the patient and the NHS about eligibility.
The Government have previously resisted amendments on the issue because they were frightened of them being too prescriptive and detailed. They did not want that level of detail in the Bill. That is why, as I conceived it, the amendment was relatively open but it seems to me that it has ended up being drafted in too open a way and has been misinterpreted as a call for an entirely separate apparatus, which I do not think it is.
I do not expect the Minister to accept the amendment or to change the Government’s position but I wanted to explain that that is how I would choose to read it. The independence that we need is not based on entirely new apparatus but is, as the hon. Member for Billericay said, more along the lines of the resolve pilot. That was a Government pilot. It was positively evaluated. The speedy resolution pilot now ongoing in Wales is, by all accounts, being positively evaluated. Part of the positive evaluation includes a considerable saving to everyone concerned. I think that the saving is, on average, £7,000 a case.
The point of the resolve pilot is that, conceptually and initially, it comes from within the Department. It sits entirely within the spirit of what the Government are trying to do in the rest of the Bill. Indeed, the Bill allows for such arrangements. What I am asking for in amendment No. 19—I will meet the Minister tomorrow to talk about this—is for the Government to reflect on the issue and come back on Report with a strengthened version of what is in the Bill to introduce some independence in a way that gives more of a right for an appellant at a late stage in proceedings than is the case now.
I reiterate that the Bill is a good one. It has an opportunity to do a lot. Many of us who take an interest in such matters are reasonably relaxed about the Government’s desire not to have an over-prescriptive Bill or to drown the NHS in bureaucracy. As constituency MPs, we all see how easily bureaucratic masses can weigh us down. If we could have a little—I genuinely mean a little—more prescription in the Bill, it would do an awful lot to reassure external organisations; there is a big coalition of patient, medical and legal organisations.
John Baron (Shadow Minister, Health; Billericay, Conservative)
I can help the hon. Gentleman out. He says that he does not want to be too prescriptive and add to the administration, but resolve-type schemes can exist outside the scheme as envisaged if the Bill and the redress scheme is restricted to fact finding. Resolve-type schemes can exist outside that. They have done so in the past and, no doubt, they will do so in the future. We do not have to bring the resolve-type scheme within the redress scheme.
Siôn Simon (Birmingham, Erdington, Labour)
My point is that the Bill allows for resolve-type schemes but does not create a situation in which a resolve-type scheme is a legal right for a claimant who has not received the redress that they want through the scheme as envisaged in the rest of the Bill. The hon. Gentleman has had frequent interchanges with the Minister on whether final recourse to legal proceedings is a satisfactory answer. I say that it is not.
To bridge the gap between final recourse to legal proceedings and the mechanisms as they stand, there should be a legal right in the Bill, for claimants who have not managed to resolve their claims through the mainstream processes, to some kind of what I have been calling independent schemes, but which we are now calling resolve-type schemes. I believe that such schemes are generally called joint instruction. It would be better to have such a right in the Bill than to leave it to regulation. I am relaxed about the Government covering most matters in secondary legislation, but having a little more in the Bill, particularly on this issue, would go an awfully long way toward reassuring many organisations outside the House that take a strong interest in this on behalf of a lot of sadly injured people.
Sandra Gidley (Shadow Minister, Health; Romsey, Liberal Democrat)
We have probably done to death the arguments about which scheme is better. I simply want to reiterate that there is a substantial point of difference between both sides. The Opposition believe that it is important that there is a greater element of independence in the process. I know that the Minister did not like the phrase “judge and jury”, but the public’s perception will be of an in-house cover up. As we have had such a long debate with many interventions on the Minister, in which points were put very carefully by the Conservative spokesman, I do not propose to go over those points yet again for the sake of stating them on the record.
I shall speak briefly to Liberal Democrat amendments Nos. 19 and 20.
Sandra Gidley (Shadow Minister, Health; Romsey, Liberal Democrat)
Thank you for clarifying that,Miss Begg. That means that my remarks will be even shorter. The hon. Member for Billericay is right to say that there is no need for an amendment to this part of the Bill because we are happy with it, but I took the rather pragmatic approach that the Government would try to delete clause 12. I thought that it might be useful to table a probing amendment to allow a debate on the issues raised by the hon. Member for Birmingham, Erdington.
The amendment would provide a guarantee that in specified circumstances there would be an independent assessment of eligibility for redress. In the other place, the Government introduced an amendment making it possible that independent medical experts might be jointly instructed to report on cases. The word “might” is important. It is also possible that patients will be provided with legal advice or representation. Although that is a welcome move, there is no assurance that that will be a right, in any circumstance, and that is a problem. Neither is there any guarantee that the findings in a medical expert’s report will be a determining factor in establishing eligibility. That differs substantially from what happens in the resolve pilots, or the speedy resolution pilots in Wales. The point that intrigued me was that those schemes seem to be widely regarded as having been successful, so I was interested in the Government’s thinking behind their apparent different approach to this Bill. Some clarification on that would be very useful.
As has been pointed out by the hon. Member for Birmingham, Erdington, the amendment would provide a safety net for those cases that are not proactively settled by the NHS. That safety net will be needed only where there is disagreement between the NHS and the patient over eligibility.
The Minister has suggested that there is no problem because such matters can be dealt with easily by the NHSLA, but it is worth bearing it in mind that the authority’s current job is to defend the NHS against clinical negligence claims, and it is effective in that. It is difficult to see how it can suddenly and effectively take on a new role, change tack and be on the side of the patient, too. How can the NHSLA perform that role with impartiality? That goes to the heart of the debate that we have had throughout this sitting about justice being done and being seen to be done. I hesitate to use the point about “judge and jury” yet again, but the NHSLA is not used to such work and will probably have to expand in some way, with extra costs. Have those been factored in? That point needs to be addressed by the Minister.
Graham Stuart (Beverley and Holderness, Conservative)
I shall try to keep my contribution fairly short, and to be better at honouring that promise than some other spokesmen have been today.
It has become increasingly clear as the debate goes on that the Government’s proposal will create a system in its own little cul-de-sac. The initial fact-finding is to be shared with wronged patients on a without-prejudice basis, so it cannot go forward. The Minister is right to suggest that the Opposition’s inclusion of Liberal Democrat proposals splits the scheme, but that ensures a thorough, independent investigation of the facts that will give public confidence. With respect to the hon. Member for Birmingham, Erdington and others on the Labour Benches, that is why so many organisations outside this place have emphasised the need for independence. I shall quote the Law Society again. Its parliamentary brief states:
“The Society...considers that both the reality and perception of independence and impartiality throughout any procedures under the scheme are paramount to its success.”
Like the hon. Member for Birmingham, Erdington, the Minister might want to dismiss the Opposition’s opportunism or other low motives, a dismissal which is completely unwarranted, but as he struggles to take the message from the Opposition, the message from the Law Society is that the reality and perception of independence and impartiality are paramount to the success of the scheme.
Graham Stuart (Beverley and Holderness, Conservative)
I hope that the hon. Member for Birmingham, Erdington will recant his earlier hostilities and come over to a more balanced view of the situation.
Siôn Simon (Birmingham, Erdington, Labour)
I reiterate that I do not blame the hon. Gentleman’s party for a shameless piece of politics, but it is important to point out that it is a piece of politics rather than any attempt seriously to improve the legislation. Does he admit that, although the Law Society is an important partner in this debate, it is not necessarily the ideal sole arbiter of exactly the best way to do these things? It is the only outside organisation that I have heard quoted from Opposition Benches, but I could recommend factoring in the views of a whole string of patient-based, patient safety charities.
Graham Stuart (Beverley and Holderness, Conservative)
I thank the hon. Gentleman for his intervention, particularly as it allows me to deal with one of the many canards that have been thrown up by Government Members. The Opposition have mentioned all sorts of groups. The hon. Gentleman will be aware that AVMA, of which he is a trustee, has stated the need to have an independent means of deciding the merits of a case, as have Which?, Witness, Alert, MRSA Support, Patient Concern and several other organisations.
Graham Stuart (Beverley and Holderness, Conservative)
No, I shall not give way. I shall answer the hon. Gentleman’s point. We have already mentioned the Bar Council and Rethink, and there are many other organisations. The last thing I would suggest is that the Law Society should be taken as the sole arbiter, but that august organisation has commented on the reality and perception of independence. Despite the hon. Gentleman’s twisting efforts to maintain loyalty to a Government—
Graham Stuart (Beverley and Holderness, Conservative)
No, I will not give way. The Government say that independence is paramount to the scheme’s success. Where the Minister is right is in saying that the Conservative proposals would split the scheme so that the cost of investigations, which do come with a cost—the Minister has gone on a great deal about cost—is not flushed away in the event that the redress scheme or any offers made by the NHS are not acceptable to the patient. I ask Government Members to remember that the patients have been wronged by the system, and that the investigation and effort are thrown away because the information cannot be used. Yes, we would split the system so that when the facts have been objectively found—not with blame apportioned as part of the process, but purely as a fact-finding exercise—the information can be used for whatever other means of redress the patient and their advisers seek.
Graham Stuart (Beverley and Holderness, Conservative)
No. Like me, the hon. Gentleman joined this House only a year ago—
Graham Stuart (Beverley and Holderness, Conservative)
I shall try to keep my remarks brief, as I am sure that we can all join together in a consensual drive to wind up our proceedings.
The Government’s planned scheme would be a small, discrete item—effectively a cul-de-sac—which means that a lot of the work done could not be used for other systems, be it resolve schemes or other programmes to allow patients to find proper redress.
Graham Stuart (Beverley and Holderness, Conservative)
I will take no interventions, in order to keep my promise to colleagues across the Committee.
My final point is about how the culture of secrecy and defensiveness in the NHS is to be changed. The hon. Member for Crawley spoke with fluency and passion on that subject on Second Reading and has done so again today—perhaps that comes from knowing something about it. However, I could not make the connection between the ends that she fluently described as important and necessary and the Government’s system or see how it would help to secure them.
I do not see a system that will have the levers or triggers to change the NHS. As we have said, there are already provisions under which the NHS can assess whether it has been at fault. The NHS can come forward to patients to apologise and offer compensation, while in no way stopping them from going to law or finding another route to resolve the issue. That is the nub of the matter. It would be a great shame if this opportunity to provide a better system of redress for patients was missed because the Government hoped that the Bill would magically change the culture of the NHS.
The chief benefit of the system that we can hopeto achieve with the Bill will probably not be a fundamental culture change in those organisations that are a bit defensive and slow to apologise to patients; it will be an alternative route to justice. That route will have to be based on the independent verification of facts and speedy progress, with minimal involvement of lawyers, to give people justice, restitution and an apology for the harm that they have suffered. As I said on Second Reading, I fear that the Government, by insisting on sticking with their initial proposal, may end up with a damp squib that neither changes the culture nor in reality provides for the proper investigation of facts that will allow patients to obtain the fairness and justice that I know that every Member wishes to see.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
Although we have had our disagreements, this has been a good debate. In many ways, the fact that we have had a turbulent debate might illustrate that there is a fundamental difference of opinion about how the scheme should be constructed. But we agree that something of the kind is necessary and that the NHS should get better at opening up and dealing with its own complaints quickly and at absorbing those lessons. Both those things are good.
To some extent, we have gone round the houses, and rightly so because these are important matters. As my hon. Friend the Member for Birmingham, Erdington rightly said, people who take a close interest will want to see that we covered these matters in detail. Our having put our positions on the record, other people will be able to make their own judgments.
I refer all Committee members back to the policy intention behind the Bill: to provide a coherent redress scheme focused on speedy resolution of cases after full investigation by scheme members at local level, which also provides full redress for patients through a single-stage scheme and local learning from mistakes. Those were our policy goals in introducing the Bill. I heard the arguments made by hon. Members but remain convinced—I might even be more convinced—that the scheme we propose is the right way to achieve those aims.
I shall not pick up on every point made, because we have covered many points in detail. In talking about the costs, the hon. Member for Billericay said that the Opposition’s proposal would be cheaper because people would have no right to a lawyer; in other words, by definition it was a scheme that had a more narrow focus. I thought that I heard him say that.
John Baron (Shadow Minister, Health; Billericay, Conservative)
My essential point was that in large part we are keeping the lawyers out, because of the simple fact that we are not trying to determine liability as well as establish the facts. In the Government’s scheme, the lawyers would be far more involved, which would account for some of the additional costs that I think it would incur. We would not try to determine liability, so we would largely keep lawyers out of this system.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
That makes the point that I was just discussing. The hon. Gentleman claims that lawyers would largely be kept out of the system. Let us accept that he is genuine in having said all afternoon that we need a scheme based around patients and protecting their interests. Given that, in our view it is right that legal advice should be available to protect the interests of individuals at the point at which they accept redress or not.
It is crucial that the Opposition understand that the scheme is meant to be part of a coherent whole. The hon. Gentleman seems to have in mind a situation where elements can be packaged off and separated from each other. We clearly have a difference of view about how this thing should be organised. I remain convinced that our proposals are the right ones.
I shall pick up on the points made by my hon. Friend the Member for Birmingham, Erdington. He was right to focus on amendment No. 19, because perhaps, in all the argy-bargy on clause 12, we did not do it justice. I carefully examined the wording of the amendment as he was making his appeal that we needed to look more sympathetically at it. As I understand it—the hon. Member for Romsey may want to come back on this point—it would allow independent assessment of whether a case was eligible. It says that that judgment should be independent, rather than being taken by the NHS Litigation Authority. I have said that we intend that legal advice will be available on the offer and, in other circumstances, could be provided at an earlier stage. Clause 8(1)(a) allows legal advice to be provided at any point, and we intend to consult on when it would be appropriate, earlier in the process, to make such advice available.
Clause 8(1)(b) allows for the involvement of jointly instructed independent medical experts. That picks up on my hon. Friend’s point. Again, we will consult on when such experts will be engaged. There is room for discussion with my hon. Friend about how and when the provisions in the Bill will be used by the scheme in practice. I will be ready to carry on that discussion with him and the organisation that he represents so well. That offer exists and is genuine. In saying that, I have to say that we envisage that the reports that the experts produce will be intended to help the NHS Litigation Authority to reach a view on liability. That work will inform its deliberations on the final outcome.
I think that amendment No. 19 envisages something different: an independent expert or an independently appointed individual making the judgment on whether or not liability arises. That would be a different scheme. This is the NHS redress scheme. We seem to be struggling to get that point over. It is a scheme of the NHS itself. It is seeking to offer a way of doing things that is better than what it does at present.
The point that Opposition Members have missed is that, in any redress procedure against any organisation, public or private sector, the normal process is that a person takes their complaint first to the organisation that they believe mishandled their care or the other service provided to them. That is the normal process that someone goes through before going on to a second-stage process involving more independence. The point about this scheme is that, in the first-stage process, when someone goes to the national health service with a grievance or complaint, they are asking it to do a comprehensive job of investigating the complaint, explaining what happened, apologising for it and making financial reparation if need be. We are talking about a much better job being done at that first stage of the process than is done at present. That is the crux of the Bill.
Sandra Gidley (Shadow Minister, Health; Romsey, Liberal Democrat)
Perhaps the amendment was not as clearly drafted as it might have been. I had envisaged it as a stop-gap or safety net so that if there were a dispute as to whether a case would be taken forward, there would be provision for an independent opinion. That would apply not in every case but in specified cases in which perhaps there was a lack of clarity.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
That is a reasonable point. The answer is that this is an in-house scheme, in effect, and that decision will be made by the Litigation Authority, but the decision can be informed by independent advice or evidence that is jointly commissioned by the complainant and the NHS. That scheme is slightly different from what we have at present, but it is still an NHS scheme. It does not sign away the ability of any patient to go on to pursue their rights through other means, so it is wrong to use the phrase “judge and jury”, because in that case those rights would have been ruled upon and then disposed of and that is not what the scheme does. An offer is made based on assumptions about whether a liability has arisen. The phrase “judge and jury” does not apply. We are talking simply about an ability to provide redress before the legal system has to be invoked.
Let me deal with a couple of points quickly, because I know that the Committee would like to make progress. On the without prejudice question, only the offer may be without prejudice. The patient can take the explanation or investigation report and use it in court should legal proceedings follow an unsuccessful attempt to use the NHS redress scheme. We intend to consult on whether investigation reports will be disclosed, but I stress that the use of that material is not ruled out by the scheme, and I do not think that anybody would want that to be the case.
The hon. Member for Beverley and Holderness raised a number of times the position of the Law Society. That is important; we should have its view on record. In its written evidence to the Constitutional Affairs Committee, it said clearly that it supported the proposed scheme,
“providing there is sufficient access to free legal advice for victims”
and that the right to go to court was not compromised. While the Bill is light on the detail of the scheme, it said, those requirements appeared to have been met, subject to clarification of some areas as the Bill passes through its later stages.
Graham Stuart (Beverley and Holderness, Conservative)
I believe that, in its submission for today, the Law Society supported clause 12. Is that the Minister’s understanding?
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
I have provided an accurate quote from the evidence provided by the Law Society. It mentions two tests: free legal advice and the right to court not being compromised. It was right to set those tests, and I challenge any Opposition member to suggest that anything in the Bill does not meet either of them. It is important to have that view on the record.
Let me make some quick points in closing. In response to the hon. Member for Billericay, I would argue that the patient is not materially disadvantaged by taking a claim forward under the scheme and then finding that the scheme has not been able to deliver redress. Yes, there is a time delay in that process, but all the patient’s rights to take a claim beyond the NHS redress scheme remain. Most patients would find that before they took action under the current system they would spend time in correspondence, negotiation and discussion with the trust. The individual is not materially disadvantaged by the scheme as it is envisaged.
John Baron (Shadow Minister, Health; Billericay, Conservative)
I have asked this question once, but the Minister moved on. Perhaps he can give us an answer now. I take on board his point that patients still have the right to go to court if they are not happy. However, as I said before, given that the point behind the redress scheme is to provide an alternative to going to court, does he not think that it would be absurd if the key to the success of the alternative were a right to appeal to the original? That does not make sense, yet the Minister seems to be using the right to carry on as an alternative to going to court as somehow justifying his view that the redress scheme will be happily in operation.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
Perhaps, again, this is where we have a fundamental disagreement, or do not understand each other. We would argue that it is the right to go to court that puts pressure on the NHS redress scheme to be a success. The fact that that right is not compromised, the process can continue and a case can go to court ensures that there is not—as Opposition Members have been claiming all afternoon—an incentive in the system not to investigate independently or fairly and not to provide fair redress at the end of the process. Because that end stage is still there and can be invoked by the individual, it creates the necessary pressure earlier on for the NHS redress scheme to be a success.
John Baron (Shadow Minister, Health; Billericay, Conservative)
If that is the case, does the Minister accept that the scheme being envisaged by the Government will create an atmosphere in which there will be no down side for anybody deciding to have a go? It will be cost-free and the costs will be covered if the decision goes against the patient. Where is the discipline in the scheme? It will be a risk-free attempt to have a go, at the expense of the NHS.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
I agreed with the hon. Gentleman earlier that most people do not want to have a go at the NHS and that most do not want to make an opportunistic claim to take it to the cleaners. That is not what motivates most people. If people do make opportunistic claims, they will be stopped at an early stage, so I do not accept that that is a problem with the scheme. The scheme that he envisages would make that more of a problem, because if a frivolousor opportunistic claim had to be independently investigated by a patient redress investigator, that might create more cost. Under the scheme that we propose, if claims clearly do not have a basis in law and there is no liability, they will be safely preventable. If the individual concerned wishes to pursue legal action they will be able to do so. I do not believe that that is a weakness in the scheme. Only genuine claims will be compensated and get to the final stage when legal advice will be provided.
I say to my hon. Friend the Member for Birmingham, Erdington and the hon. Member for Romsey that we may not have paid sufficient attention to the role that the Independent Complaints Advocacy Service can play throughout the process and currently plays in supporting patients as they navigate the complex world of the NHS complaints system and the litigation process. ICAS is a patient-centred service, delivering support ranging from information on self-help to the assignment of an advocate to assist individuals with letter-writing, form-filling and attendance at meetings. There is a lot of evidence to suggest that the services provided by ICAS are much valued and appreciated by patients. The Department had some research on ICAS done by MORI, and one example uncovered was that of an individual who said:
“It offered good advice. I felt I had someone on my side.”
ICAS services will work alongside the redress scheme to help people work their way through it and to provide some of the independence that my hon. Friend the Member for Birmingham, Erdington and the hon. Member for Romsey want.
I do not want to prolong our discussions, but I shall finish on a partisan note. My hon. Friend the Member for Amber Valley (Judy Mallaber) put some pertinent questions to the hon. Member for Billericay about how many patient redress investigators there would be, who would employ them and what they would do. We did not get answers to those questions. It is impossible for the Government even to consider accepting such a scheme when there is no detail to support it. [Interruption.]I say to the hon. Member for Eddisbury, whom I hear chuntering away, that in the absence of such detail, the Department must make its own calculations of the cost implications of the proposal that the Opposition are putting forward.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
I am happy to do so.
It would be deeply irresponsible for the Department of Health to accept a scheme without seeking to determine and bottom out its costs. I have given the hon. Gentleman the range within which we anticipate that the cost would fall—£14 million to £41 million. Unless he provides further detail, we cannot do any more. That is why we seek to amend the Bill. I say to the hon. Member for Romsey that I appreciate the intent behind amendment No. 19, which is motivated by a genuine point. But again, it is an NHS scheme and it would not be right for ultimate adjudication to rest in independent hands; it should rest with the NHS.
Division number 1 - 9 yes, 6 no
Voting yes: Andy Burnham, Mark Fisher, Huw Irranca-Davies, Diana Johnson, Judy Mallaber, Laura Moffatt, Julie Morgan, Siôn Simon, Anne Snelgrove
Voting no: John Baron, Sandra Gidley, Nick Hurd, Stephen O'Brien, Graham Stuart, Charles Walker
Division number 2 - 9 yes, 6 no
Voting yes: Andy Burnham, Mark Fisher, Huw Irranca-Davies, Diana Johnson, Judy Mallaber, Laura Moffatt, Julie Morgan, Siôn Simon, Anne Snelgrove
Voting no: John Baron, Sandra Gidley, Nick Hurd, Stephen O'Brien, Graham Stuart, Charles Walker
Sandra Gidley (Shadow Minister, Health; Romsey, Liberal Democrat)
I beg to move amendment No. 20, in clause 6, page 4, line 26, at end add—
‘( ) a scheme must provide that any waiver to bring civil proceedings does not apply if the injury or loss to which the settlement relates has increased beyond the extent which was foreseen by the scheme at the time of the settlement agreement.'.
I shall not detain the Committee too long. Amendment No. 20 tries to probe situations in which a patient’s condition might deteriorate significantly after the point at which a settlement is agreed.
One of the factors that makes medicine so fascinating is that there really is no such thing as a textbook case; frequently there are unusual, sometimes unforeseen, complications. But if those arise after a settlement, the waiver of a right to bring civil proceedings could prevent the injured patient from seeking and receiving compensation for whatever extra loss has been accrued. If the patient had chosen the court route, he or she would have been able to take proceedings to compensate for that additional loss, but under the current scheme, a patient could lose out. The reason for the amendment was to establish what would be open to a patient under those unfortunate, and probably rare, circumstances.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
Amendment No. 20 would enable civil proceedings to be commenced when the severity of the injury had increased in a manner not foreseen at the time of the settlement—under the redress scheme, as the hon. Lady said—even though a waiver of the right to bring such proceedings had been signed as part of the settlement.
The amendment is undesirable and unnecessary. It is intended that where an offer under the scheme is accepted, a settlement agreement will set out the detail of the offer of redress. Before a person enters into such a settlement agreement, they will have been entitled to free and independent legal advice, which will advise them on whether the offer is reasonable and equivalent to what they would have received through the courts.
Clause 8(2)(b) requires the scheme to make provision for free legal advice in relation not only to the offer but to the settlement agreement.
Sandra Gidley (Shadow Minister, Health; Romsey, Liberal Democrat)
I understand the Minister’s point, but the nub of the argument is that at that stage of proceedings, the patient does not know that anything is going to happen to them. At that point, in all honesty and probably feeling that the deal is reasonable, the patient will be happy to sign. However, if six months or a year down the line they develop complications, they will probably regret that decision. It would be unusual if that were to happen, but it is possible.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
I understand the hon. Lady’s point, but following a discussion in another place, it was agreed that it would be appropriate to insert in the clause paragraph (b) to provide reassurance to people that the scheme would not require those harmed during NHS care to waive their rights, unless they are fully aware of the consequences and they consent to that waiver.
May I develop my thoughts? I may provide some reassurance to the hon. Lady or I may not. If people are advised that there is uncertainty over their prognosis, and that the offer of settlement may not take adequate account of that, it will be open to them to reject the offer of settlement under the scheme and seek redress through the courts, as we have said throughout proceedings today. That is the type of case in which it might be appropriate for the scheme to appoint a jointly agreed expert through the powers in clause 8(1)(b). The paragraph says that provision can be made in connection with proceedings under the scheme,
“including the services of medical experts.”
In that respect, an applicant under the scheme will be in a similar position to a person who is made an offer of settlement after the commencement of court proceedings. Those are the facts. That person will have to weigh up all the factors on the basis of appropriate advice, and decide whether they wish to accept the offer. Claimants in civil proceedings do not generally get a second bite at the cherry. Settlements are usually a full and final settlement of any claim that they bring.
John Baron (Shadow Minister, Health; Billericay, Conservative)
We have had a few differences this afternoon, but I rise to support the Minister’s case. Does he agree that the whole point of a legal process is to aim to give certainty at a given point in time? Certainty means closure and finality. If the amendment were accepted, one might ask, for example, whether after an award was made and the condition got better, one would have to repay the settlement. The amendment would create too many uncertainties, and at the end of the day, we want certainty and we want a robust scheme. As such, I am afraid that the amendment does not provide that.
Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)
I am grateful to the hon. Gentleman, because I agree that the amendment would not provide that certainty. Although I sympathise in some ways with the hon. Lady’s point, and we would all sympathise with people who were left in that position, because it would be a difficult position to be in, the hon. Gentleman is right. At the end of the day, there must be a resolution. When that moment arrives, individuals must take advice and make their decision. Why should acceptance of offers under the scheme be any different from what takes place under civil proceedings, especially since rejection of an offer will not affect their right to take civil proceedings? That is how it differs from the court process, as the hon. Member for Romsey was saying. Under civil proceedings, it really would be the shutter coming down—the end of the line. In this case, if someone decides not to accept an offer because of concerns raised by independent medical advice, they have the option to take matters forward to seek further redress through the legal system.
I appreciate the hon. Lady’s point. I do not want to sound harsh or unsympathetic to people in the position that she describes, but at the end of the day, as the hon. Member for Billericay says, there has to be a resolution, and people should be enabled to make that judgment with access to the best advice that the scheme can provide. The redress scheme will provide speedy resolutions for clinical negligence cases of a lower monetary value. Those involved in more complicated cases involving serious injuries, or where there is a chance that as a result a person may develop a serious deterioration in their condition, will obviously be outside the scope of the scheme.
The cases that the hon. Lady describes are more likely to be of that sort than those the scheme is intended to deal with, and in such circumstances, people would rightly want to go to court in order to examine fully all the future costs that they may face, for example for continuing care, and have those fully quantified through the legal process. I hope that I have answered her points in part. On this occasion, the hon. Member for Billericay and I agree: I do not believe it would be sensible to create a situation in which there was no finality once the scheme reached its conclusion.
Sandra Gidley (Shadow Minister, Health; Romsey, Liberal Democrat)
I understand the need for finality, but I find it difficult to appreciate how someone can take advice on unforeseen circumstances. By their very nature, no one can predict or give advice on what they might be. It seems that some people may lose out.
Clearly, I have no support from any other quarter so I beg to ask leave to withdraw my amendment.
Division number 3 - 9 yes, 6 no
Voting yes: Andy Burnham, Mark Fisher, Huw Irranca-Davies, Diana Johnson, Judy Mallaber, Laura Moffatt, Julie Morgan, Siôn Simon, Anne Snelgrove
Voting no: John Baron, Sandra Gidley, Nick Hurd, Stephen O'Brien, Graham Stuart, Charles Walker